Witness for the Prosecution

Bruce Udolf spent seven years arguing public corruption cases for the U.S. Attorney's Office in Miami. A report from the front lines.

Subsequent court decisions say no words need be spoken, and if people participate in these transactions with winks and nods knowing full well what this money is really for, then that is sufficient to convict under the law. So the law has evolved to respond to the growing sophistication of people engaged in this sort of conduct.

The 1991 conviction and sentencing of Hialeah Mayor Raul Martinez did not signal the end of the federal extortion and racketeering case against him; it was just the beginning. In fact, the mayor never went to jail to serve his ten-year sentence. His attorneys appealed the verdict -- not once, but twice -- and won a reversal. But although the first appellate court panel had reversed the conviction, a second panel ruled that the evidence was sufficient to allow a retrial, and the feds weren't about to fold. Udolf and co-counsel Richard Gregorie took the case back to federal court in 1996 -- an astonishing six years after the original indictment -- and retried Martinez on the remaining six counts. The result: a hung jury on all charges. Four weeks later they were back in court again, for trial number three. The jury acquitted Martinez on one extortion charge and deadlocked on the other five. Though the majority of votes on each count was reportedly in favor of conviction, then-U.S. Attorney Kendall Coffey declared that the government would end its prosecution of Martinez.

Explicit agreements versus implicit agreements, spoken communication versus nods and winks: Weren't these exactly the niceties at issue in the Martinez case?

At the time we tried Martinez, the law was still very much evolving. Still is. While the jury was deliberating during the first retrial, they sent a question to the courtroom. As I remember, they asked: "Does there have to be an explicit quid pro quo?" And the judge said yes. And they asked : "Can there be an implicit quid pro quo?" And the judge said no.

There was a big fight whether the jury should be told that "explicit" didn't mean "verbally expressed." We didn't fare too well in those arguments and, as a result, we weren't too optimistic. It was a pretty major battle: That issue, whether or not circumstantial evidence could be used to prove a corrupt agreement, was at the heart of our case. That's one of the reasons we tried the case a third time. To walk away from it under those circumstances would've hamstrung our future ability to make a corruption case where there weren't explicit words spoken. But the bottom line was that we felt the evidence we had was sufficient. And we were supported by the jury's verdict in the first case and by the appeals court's finding that there was sufficient evidence in the first trial.

Was there an emotional component to the decision to retry the case?
No. There was no way I wanted to try that case again. I had just become a father a week before the closing arguments in Martinez 2. But we felt like we had to give it everything we had to make that case, including all the circumstantial evidence of the quid pro quo. I have no problem with what the jury did in the third trial, because we were able to make the point that a case of this kind can be brought with circumstantial evidence.

Would you call it a loss?
No. I think it was a principled effort that should have been made. I think it would have been a mistake to walk away from the case. That was the important thing -- not whether he was convicted or not. As far as I'm concerned, that jury worked as hard as any jury I've ever seen. They really struggled with that case! They wanted to resolve the issues one way or another. We thought we had a fair trial, a good airing-out of the issues.

Unfortunately people measure success by convictions. As has been said many times, the government wins when there's justice. In our society we're so used to judging things by wins, losses, and draws. Justice is a much more amorphous concept and doesn't lend itself to that type of evaluation, at least from my point of view. I thought the last trial was fair and well-tried on both sides. What we do is really measured by how we do, not necessarily by acquittals or convictions. How just the process is can't be measured in those terms.

That's a subtlety that's often lost on the public, I imagine.
And that's understandable, because the public doesn't distinguish the different dynamics that are involved between prosecuting a career criminal for murder versus prosecuting someone who has been in the front pew every Sunday for the last twenty years and is now sitting there as a defendant in a criminal case. It's not perceived the same way. The public has different expectations.

Frankly, it's difficult from the outside to imagine the U.S. Attorney's Office deriving much glory from the Raul Martinez prosecution.

I'm glad you put it that way, because we shouldn't be deriving glory when we convict anyone. There is no glory. It is a distasteful, oftentimes depressing job that someone has to do.

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