Judge, Jury, and Dictator
How much does freedom of speech cost when applied to the now-infamous Liberty City terror trial?
For one private investigator who worked long and hard on the case, Rory McMahon, the bill came to $9,000. For making the mistake of speaking his mind, the veteran P.I. was also banned from the case.
That's the punishment levied against McMahon by U.S. District Judge Joan Lenard, who handled the two previous Liberty City terrorism trials and is presiding over the third that's playing out now at the federal courthouse in Miami. Lenard refused to authorize payment to McMahon for work he'd done while leading the investigation for the Liberty City defense.
McMahon's crime: He had the nerve to criticize the judge during the first trial in a story in New Times ("Liberty Seven Trial Travesty," November 22, 2007).
Because federal judges have near-dictatorial power in their courtrooms, there's not a thing McMahon, a former federal probation officer, can do about it, the First Amendment be damned.
"Initially I was totally shocked," McMahon says of his reaction to Lenard's withholding his pay for 180 hours of work. "But I know that federal judges can act with impunity and there is no accountability, so I guess I shouldn't have been."
McMahon's story is a cautionary tale for anyone involved in the justice system. The disheartening lesson: Keep your mouth shut.
He became part of the case in 2007, when Miami defense attorney Albert Levin hired him to work on behalf of Liberty City defendant Patrick Abraham, an impoverished 20-something Haitian immigrant with no prior criminal record. Abraham was swept up in the case, which the Bush administration had hailed as a rare victory in the War on Terror.
Then-U.S. Attorney General Alberto Gonzalez famously claimed during a nationally televised news conference that Abraham and the rest of the so-called Liberty City Seven defendants were prepared to wage a "ground war" on the United States and that they had plans to blow up the Sears Tower. But as the facts came out, it became increasingly clear that the case was a government-cooked farce and that the men had no real capability or intent to do harm to the country.
McMahon, who has worked on other high-profile federal cases, located numerous witnesses and dug up damning evidence on the government informants who were key witnesses for the prosecution. He learned one of the men had been involved in a plot to extort money and had also beaten a woman.
The other key government witness was once banned from FBI work after failing a polygraph test. McMahon found a former FBI supervisor, James Wedick, who was willing to testify that the informant never should have been used in the Liberty City case.
It was the two dubious informants who lured the seven defendants (one was acquitted) into the terrorism conspiracy by promising them $50,000, while federal agents directed the farce from behind the scenes.
The ragtag defendants famously pledged allegiance to Al-Qaeda but never had weapons or know-how. They faced 70 years in prison if convicted.
McMahon knew the revelations about the informants were potential bombshells, so he was outraged when Lenard refused to allow the jury to hear any of them (though Levin artfully got some of the pertinent facts in).
It seemed to be part of a pattern of the judge kneecapping the defense. Lenard, during the first trial in late 2007, ruled against the defense at nearly every turn. An extreme example came when one of the defendants had to go to the bathroom. Lenard became irate, saying it would throw off her schedule.
"The guy couldn't hold it any longer, and she threw an absolute hissy fit," McMahon says. "I was majorly disappointed with the way the trial was being conducted. I was disgusted by the... favoritism shown the prosecution... It was bizarre."
As that first trial was winding along, McMahon said the Liberty City defendants weren't getting a fair shake. New Times explored his work, which was impressive, and saw Lenard truly did seem to shut down the defense at nearly every turn. In our previous article, McMahon said, "It's like the judge is saying, 'They're terrorists, so let's throw out the rulebook.'"
The story was published before the first trial ended in a hung jury. Federal prosecutors complained to the judge about the article. Lenard grilled Levin about the story in the courtroom without the jury present.
Immediately, McMahon became fearful Lenard might not authorize payment for his work. Because Abraham is indigent, the government is footing his defense, and all money paid must first be authorized by Lenard, a former Dade County prosecutor appointed by Bill Clinton in 1995.
Attorney Levin truthfully told the judge he had no contact with New Times, so Lenard's wrath came down squarely on McMahon. In the footnote to a sealed budget document, she wrote, "The Court will not recommend approval of any funds for Mr. Abraham's investigator during the first trial, Rory McMahon, due to Mr. McMahon's violation of the Court's rules during the first trial."
But McMahon never broke a court rule. The rule she cites forbids lawyers who practice in federal courts of the Southern District of Florida from releasing any information that might "interfere with a fair trial or otherwise prejudice the due administration of justice."
First, McMahon was trying to bring justice and fairness to the trial, not the other way around. Second, he's not a lawyer, and nowhere in the court's rules does it say private investigators are forbidden from releasing information.
Levin filed multiple appeals to Lenard's ruling, explaining McMahon had "led the investigation and did the majority of the work." The argument didn't impress Lenard, who made her final ruling this past December 19, authorizing only $985 in expenses.
The judge's action seems, in a perverse way, a fitting coda to the ridiculous case. During a trial that is supposedly about preserving America and its way of life, the judge basically fined a man a large sum of money and banned him from the trial for speaking out.
Sounds more like Iran or North Korea.
McMahon has taken his case to U.S. Congressmen Alcee Hastings and Ron Klein, so far with no response.
Lenard, meanwhile, is presiding over the third trial, which itself is an outrage after two juries have already chosen not to convict. The prosecution apparently will keep going until it somehow gets its way.
And the juries were surely influenced by McMahon's work, or at least the bits and pieces of it the attorneys were able to get past the judge.
So his work hasn't been forgotten. This past February 22, the Florida Association of Criminal Defense Lawyers named Levin winner of the Rodney Thaxton "Against All Odds" Award, which is given to an attorney who "epitomizes the courage to stand apart (and often alone) as liberty's last champion." After it was announced, Levin sent off an email to McMahon: "You own a piece of this. Thanks."
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