By Michael E. Miller
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With negotiations off, Martinez subsequently was indicted and suspended from office without pay by Gov. Bob Martinez (no relation). A ten-week trial in early 1991 resulted in his conviction on six counts of racketeering and extortion, and that July he was sentenced to ten years in prison.
Now it's deja vu all over again. After an appeal, re-election to office, and reversal of his conviction, Martinez remains a free man, is once again mayor of Dade County's second-largest municipality, and now faces a new trial on the same corruption charges. In the next few weeks, a status conference will be convened before U.S. District Judge James W. Kehoe, who is likely to set a trial date at that time.
As in 1991, both Martinez and the government have good reasons for trying to avoid a courthouse showdown. And again Hialeah is buzzing with talk of intense plea negotiations between Martinez and the U.S. Attorney's Office, talk that subsided last week as it became evident there would be no deal.
This time, however, the opposing sides are much more tight-lipped. No television declarations for Martinez, who will not even acknowledge that discussions were recently held. His lawyers won't say anything, either. U.S. Attorney Kendall Coffey concedes only that "one of the appropriate dispositions of the case can be a resolution by a plea agreement, but no such agreement has been reached."
Under any possible scenario, a plea bargain would surely have meant the end of Martinez's 23-year political career. State law prohibits anyone convicted of a felony from holding public office, and a guilty plea brings the same result as a conviction. Martinez would lose the job to which he was first elected fourteen years ago and has since regained and held despite overwhelming obstacles: a criminal conviction, a separate vote-fraud trial, and having to campaign in two elections a month apart. (He was allowed to run for re-election in 1993 after his first conviction because his appeal was pending.)
If prosecutors agreed, Martinez theoretically could avoid resigning his office by pleading guilty to a misdemeanor instead of one of the felonies with which he is charged. But no one familiar with the case believes the government would entertain for an instant the idea of letting the mayor get off with a misdemeanor. If Martinez agreed to plead guilty to a felony, the U.S. Attorney's Office could recommend to the judge that he serve no prison time or just a short term, but the judge isn't required to follow the recommendation at sentencing. So Martinez, in his usual dramatic fashion, will be taking an enormous risk by going to trial again.
According to Martinez, the widespread speculation about plea negotiations has been fueled by his political enemies. "There are a lot of people waiting for me to die so they can take over," he says. "But I'm not going to give up after all I've been through. Remember, I won re-election in 1993 under very difficult circumstances. I was a convicted felon and I still beat [Nilo Juri]. What better jury can you have? Not twelve people but thousands.
"If [prosecutors] want me, they'll have to come and get me," he goes on emphatically. "I didn't do what the government says I did, so I'm not afraid of a second trial." Still, he doesn't minimize the financial and mental toll the ordeal exacted. He won't reveal how much he spent for his defense at the first trial, but the law firm he retained, Hogan Greer & Shapiro, is considered among the best in the state. And the strain on him and his family was evident during the trial and at the emotionally charged sentencing proceedings.
Martinez was suspended from office and awaiting the outcome of his federal appeal when he decided to run in Hialeah's 1993 mayoral elections. He defeated Juri, a Hialeah clothing manufacturer and Martinez's perennial losing opponent, by a small margin of absentee ballots. Juri then filed a civil lawsuit alleging vote fraud.
Less than two months later, in February 1994, the U.S. court of appeals threw out Martinez's criminal conviction and ordered a new trial. The appeals panel ruled that some members of the jury had violated the judge's orders during deliberations and found that Kehoe's instructions to the jury were flawed.
This past November, in the civil suit brought by Juri, Dade Circuit Judge Stanley Shapiro decided vote fraud had occurred on both sides in the 1993 election and ordered a new election for December. Martinez won that one handily. And this past May, the federal appeals court rejected motions by Martinez's attorneys to have the corruption charges dismissed altogether, thus clearing the way for a new trial to begin, almost five years after the first one. U.S. Attorney Kendall Coffey says Bruce Udolf, now chief of the public corruption unit at the U.S. Attorney's Office, will prosecute the second trial along with Assistant U.S. Attorney Richard Gregorie. (Neither Udolf nor Gregorie would comment for this story.)
Most legal observers agree that the passage of time will be kinder to the defense than to the government. But neither side will fare easily in the complex case, which is based on allegations that Martinez illegally demanded payments of property and money in exchange for helping developers complete four different real estate projects (he was acquitted of extortion in three other projects). The mayor, who also owns a realty company, is alleged by prosecutors to have pocketed some $160,000 in illegal profits from the transactions.
Assistant U.S. Attorneys Udolf and Steven Chaykin called more than two dozen people to the stand during the 1991 trial, one of the most important being former Hialeah city councilman Silvio Cardoso, who reluctantly testified against his one-time friend and ally in exchange for leniency in his own separate corruption case. Cardoso, now back in the construction business after receiving probation, will have less incentive to testify at a new trial, even though he can't refuse a subpoena and his past grand jury and courtroom testimony is unalterable. (A man who answered the phone last week at Cardoso's construction company said Cardoso is on vacation.)
"It's hard to get witnesses to come in, especially if the politician is in office, in power; they're afraid of retaliation," observes former assistant U.S. attorney Mark Schnapp, who led the government's successful 1987 corruption prosecution of yet another Hialeah politician, Martinez's long-time friend Sebastian Dorrego. (Schnapp is currently in private practice.) "They see a person in this case who was convicted, who bounced back into power -- he's looked at as invincible. People are going to look with greater skepticism at your ability to prove your case. There's an old saying, 'If you shoot the king, you'd better kill him.'"
Prosecutors also will have lost any element of surprise because the defense is now well aware of their legal strategy. In addition, they must take into account two U.S. Supreme Court rulings since Martinez's conviction that require more specific proof to convict public officials of extortion. Martinez's attorneys cited those rulings this past April before the federal appeals court, arguing that the government had not presented evidence that would convict Martinez in light of the new rulings. A retrial, they contended, would amount to double jeopardy. In May the court rejected that argument and sent the case back for retrial.
"By denying the appeal, the [court] found sufficient evidence in the record to convict even under the more strict interpretation," says former prosecutor Chaykin, now a partner with the Miami firm of Hanzman Criden Korge Hertzberg & Chaykin. "His lawyers have to evaluate all that. The circumstances in this case are not equivalent to a hung jury, mistrial, or a situation in which the court has struck evidence introduced into trial."
Martinez, the king who was shot but not killed, says the experience has steeled him for what lies ahead. "You lose fear after you go through it once," he remarks, adding that he has always believed prosecutors have attempted to throttle his career for political reasons while winking at questionable activities by numerous other elected officials. "Why me? Why not somebody else?" he protests. "Let's all get naked and see who's the cleanest."