By Chuck Strouse
By Scott Fishman
By Terrence McCoy
By Ryan Yousefi
By Ciara LaVelle, Kat Bein, Carolina Del Busto, and Liz Tracy
By Pepe Billete
By Ryan Yousefi
By Kyle Swenson
Eventually, she recalled, she gave up and voted "not guilty."
In the days following her testimony at the Moya trial, members of the U.S. Attorney's Office privately hailed it as the vindication they needed. Her testimony that "ten or eleven" jurors were willing to find the smugglers guilty on one count was retold around the courthouse and soon accepted as fact that there were eleven solid votes to convict Falcon and Magluta. The only obstacle to victory, the story now went, was a single corrupt juror.
Proponents of this version of events apparently didn't hear the testimony of the five other jurors called as witnesses, each of whom said they were never close to convicting Falcon and Magluta on any of the counts.
Jurors Karen Braswell and Marlene Michelena said the majority was always for acquitting Falcon and Magluta. They also disputed the notion that Moya failed to review the evidence. "Was your verdict based on your independent analysis of the evidence and the law in the case?" defense attorney Paul McKenna asked Michelena.
"Yes, it was my choice," she answered.
Braswell testified that she responded "not guilty" every time a vote was taken, contradicting the assertion Moya was the lone holdout.
Even John Bellamy, one of the strongest advocates initially for convicting Falcon and Magluta, acknowledged that those favoring conviction were few. "I can recall exactly three of us that were in the minority," he said. "It could have been more."
Maria Penalver admitted that one of the reasons she voted "not guilty" was her fear of the defendants. But McKenna asked if there were other reasons as well. "I didn't think the government had a good case put together," Penalver asserted. "And every time ... they had a witness on the stand and they would build up their testimony, the defense would just topple it. It wouldn't have any sense to it. A lot of the jurors felt that way."
The government's mishandling of the Falcon-Magluta trial remains a delicate topic. The main problem, as Penalver noted, was the use of informants, convicted drug traffickers who received reduced sentences in return for their testimony against Falcon and Magluta. Prosecutors gave sweetheart deals to 27 witnesses, many of whom told conflicting tales. So many of these witnesses ended up being unreliable that their testimony ultimately tainted those witnesses the jury should have believed.
In fact the government's reliance on "bought" testimony in the Falcon-Magluta trial is now cited in training sessions for federal prosecutors across the nation. The ignominy of losing the case was compounded by the revelation that then-U.S. Attorney Kendall Coffey, brooding over the verdict, went to a strip club, paid for a $900 bottle of champagne using his credit card, and allegedly bit a club dancer on the arm. Coffey resigned as a result of the scandal that ensued.
As Curt Obront noted in his opening statement, the defense attorneys believe prosecutors began investigating jurors almost immediately following the trial as part of a government vendetta. Obront, McKenna, and Jhones tried repeatedly to raise this issue during the trial but were cut off by King. "The motivation of the Department of Justice is not an issue in this case," the judge declared. "It is totally immaterial. I see no relevancy to it. We are not going to run down all these pig trails through the palmetto."
Defense attorneys contend that in addition to Moya, three other jurors were investigated. New Times has learned the investigation began within days of the February 16, 1996, verdict. By May of that year prosecutors were already using a grand jury to obtain records and other information about jurors.
In a sealed motion presented to Judge Federico Moreno on May 20, 1996, prosecutors asked for permission to begin interviewing several jurors. The motion identified Moya as a suspect and claimed the government had received information from one of Moya's co-workers, who claimed Moya bragged that as a result of the trial "he had made so much money he was going to buy a house on Star Island." This unidentified witness was never called to testify at Moya's trial.
Also in that sealed motion, prosecutors supported the need for an investigation by citing a "confidential informant" serving time with Falcon, who claimed Falcon told him he'd paid $80,000 to control the jury's verdict. The informant has never been identified, and in hindsight the $80,000 figure is obviously wrong, thereby casting doubt on the informant's credibility. (John Schlesinger, spokesman for the U.S. Attorney's Office, declined to comment on any aspect of the Moya investigation.)
Although Judge King may be uninterested in the Justice Department's motivation, the June 20, 1996, sealed motion to Moreno raises questions regarding the investigation's origins. Did agents and prosecutors rely on dubious information to persuade a judge they needed to investigate Moya? Did they, as defense attorneys charge, probe the lives of other jurors as well? And if they did, on what basis? Former juror Maria Penalver told New Times this past week that agents accused her last year of having an affair with Moya, an accusation she denies. "I don't know what they were thinking," she said.