In the transcripts released by prosecutors last week, Hernandez does not advise anyone to take the 21/2. Attorney Quinon says the comment was made on one of the tapes prosecutors were still transcribing. He reviewed a copy and provided his own transcript of the conversation. According to Quinon, it wasn't Hernandez who introduced the phrase "taking the 21/2." It was Herbello. "Nowhere in any of the tapes did Mr. Hernandez use the phrase '21/2' or approve anyone else using it," Quinon contends. "The phrase occurs three times in the tapes and all three times it is the state's informant, Ms. Herbello, who uses it."
According to a transcript prepared by Quinon, the comment first surfaced on February 18 in a conversation between Herbello and De Goti at city hall. Hernandez was not present. Herbello asked De Goti if she should testify in the vote fraud lawsuit brought by Carollo. She and De Goti had been called to testify at trial. Both had refused, citing their Fifth Amendment right against self-incrimination. But now Herbello was wondering if she should "unplead" the Fifth and take the stand.
HERBELLO: You guys let me know what you want me to do then. If you're going to go and then say, "Well listen, I changed my mind now. Can we plead the 21/2?" [Laughs] It's like half the truth. [Laughs] Can I go and say, "Okay, listen, I did live here and look, here's the proof." Show 'em the lease, show 'em the papers, show 'em the receipts. You know what I'm saying?
De Goti and Herbello were then joined by Hernandez. After some small talk, according to Quinon, the following conversation took place.
HERBELLO: Are you going to let me talk? [Unintelligible] I will tell him you told me to unplead the Fifth. He said unplead the Fifth.
DE GOTI: "I'll take the 21/2," she said.
HERBELLO: [Laughs] I said I'll go with you and plead the 21/2. [Laughs]
HERNANDEZ: I'm going to my office.
Quinon says he suspects one of the investigators in the case told Herbello to talk about "taking the 21/2" in hopes of getting Hernandez or De Goti to repeat it themselves. "They knew that a phrase like that would be inflammatory," says Quinon, who has been unable to question Herbello directly because apparently she is in hiding. "I've had process servers looking for her for more than a week without any success."
Quinon says the way prosecutors manipulated "taking the 21/2" is indicative of how they have taken a great deal in this case out of context. In addition, the attorney claims there are other examples of what he calls prosecutorial misconduct involving Herbello. In court papers filed last week, he questioned the ethics of using Herbello to persuade Rene Alfonso to cooperate with prosecutors. "At one point," Quinon notes, "she goes so far as to tell Mr. Alfonso to insist on cooperating 'even though your attorney might be against it. Okay?'"
Over the many hours of taped conversations, perhaps just 30 seconds of discourse could doom Hernandez's defense. On February 5 Hernandez, his father, and Herbello discuss what might happen if she is arrested. Hernandez advises her to go by the house where she was registered to vote in the City of Miami and see the woman who is providing her with an alibi.
HERBELLO: So she remembers?
HERNANDEZ: You've got to go to see as well.
HERBELLO: To the house to see, and I'll decide.
HERNANDEZ: [unintelligible] because they're going to ask you --
HERBELLO: Yeah, inside.
HERNANDEZ: Remember, you don't have to talk, but they're going to tell you, "What's the color of the house?"
HERNANDEZ, SR.: Uh-huh, and, and, "How does the room look inside [unintelligible]?"
HERBELLO: Okay
Prosecutors believe there is only one reason Hernandez would tell Herbello to visit the house and study its color and design: He was part of the coverup and knew Herbello had voted illegally.
