Poring over the transcripts of the secret tape recordings compiled by the Dade State Attorney's Office as part of its criminal case against former Miami city commissioner Humberto Hernandez, three things became clear:
First, Hernandez's former chief of staff, Jorge De Goti, has a vivid, albeit limited, vocabulary. Second, Evelyn Herbello deserves an Oscar for her performance as the government's undercover agent. And third, these tapes are far less incriminating for Hernandez than the public has been led to believe. A close reading of the transcripts reveals that they are probably not the smoking gun prosecutors need to guarantee a conviction in the vote fraud case.
First things first.
JORGE DE GOTI: MIAMI'S POET LAUREATE
Who knew that the commissioner's right-hand man possessed such an evocative speaking style? In this passage from a January 22 conversation between Herbello and De Goti, Herbello explains that she is worried because agents from the Florida Department of Law Enforcement (FDLE) are threatening to arrest more people in the vote fraud scandal. "Oh, please," De Goti says dismissively. He tells her he knows exactly what he is going to say when FDLE agents come knocking on his door:
"'Why don't you suck my left nut?' Shit, I'd tell them, 'Why don't you suck my left nut and prove it? Okay, cocksucker?' I'll tell them just like that."
Other memorable De Goti quotes culled from the tapes:
*"I have nothing to hide. I can shit on his mom, and on anyone's mom, because I've got nothing to hide."
*"They can charge me right now for being, ah ... for putting my dick out in the corner and [they can say] that I put my dick in the corner and I didn't! They can arrest me for anything!"
*"Where's that faggot brother of mine, shit, what a faggot! My brother is such a faggot."
*"I was on the line with the, with city hall, they say the news [media] are all [there], all the fucking news, fucking dumb motherfuckers."
*"Fuck you, you know, you know what I mean?"
*"These guys are fucking scumbags."
*"Stupid fucks! Hello?"
Not since Tony Montoya (Al Pacino's character in Scarface) has a Cuban-American been recorded using the f-word so many times. On one tape Herbello finally asks De Goti if his mother ever smacked him for cursing so often. "A whole shitload of times," he replies.
The most poetically profane passage (think haiku) is the outburst below, which comes as De Goti drives Herbello to her office. Without provocation, De Goti exclaims, "Oh, man, what an asshole, shit, motherfucker."
EVELYN HERBELLO: A STAR IS BORN
On December 9 the Miami Herald reported that dozens of fraudulent absentee ballots may have been cast in November's city election. Many of those ballots, the newspaper noted, were linked to associates of Humberto Hernandez. Two examples cited by the Herald were the ballots of Evelyn and Rudy Herbello. Evelyn Herbello worked for the City of Miami and was once Hernandez's secretary. Rudy Herbello is a sergeant with the Miami Police Department. Although they own a house in West Dade, they both voted in the City of Miami through absentee ballots.
"There's no discrepancy," Rudy Herbello told the Herald at the time. "Does that mean I can't have more than one house? Some information you have is not accurate."
Evelyn Herbello was more curt, refusing to answer the Herald's questions. "You guys write whatever the hell you want anyway," she was quoted as saying.
Herbello's bravado was short-lived, however; soon she contacted the Dade State Attorney's Office and offered to cooperate. She claimed that her husband knew nothing about fraudulent votes and that the person who helped her register illegally in Miami was Jorge De Goti's father Jose.
"When I first met with her," recalls Joe Centorino, head of the state attorney's public corruption unit, "she was very vulnerable, very emotional. She was in tears. She came in to see me with her priest."
Centorino asked her if she would be willing to wear a wire. "I think she was very conflicted about that at the outset because she still considered these people to be her friends," he says. "But she agreed, and once she got into it she was more comfortable with it. She did a superb job, there is no doubt about it."
Centorino says even he was amazed at Herbello's ingenuity during her meetings with Jorge De Goti and Hernandez. "No amount of coaching could make her as good as she was," he marvels.
One series of meetings was particularly tricky. Prosecutors asked Herbello to meet with another city employee, Rene Alfonso, who they believed had also voted illegally. FDLE agents had confronted him once, and now they wanted to see what he would tell Herbello.
While Herbello pumped Alfonso for information, she also tried to turn him against Hernandez and De Goti. During their January 20 meeting, she told Alfonso that Hernandez and De Goti would try to lay the blame for the vote fraud scandal on underlings like them.
HERBELLO: I mean, who's going to pay for it? You and me. You think they're going to stand up for us? They are not going to do anything for us. They're just going to turn their backs. It doesn't matter, you cooperate with FDLE and with the state. And no matter what they say, what they call you after this ... Rene, let me ask you a question. If, uh ... because I'm waiting any moment for [FDLE] to knock on my door. If you sit down with Centorino, with the agents, and they ask you to cooperate.
ALFONSO: I'm going to tell the truth.
HERBELLO: You know, I understand, but...you're going to say the truth, fine. But I'm saying, cooperating, as uh ... what about if they ask you to tape conversations, would you, to clean yourself?
ALFONSO: To tape conversations?
HERBELLO: In other words, uh, you know, to try to cooperate with them, to try to get more evidence, more stuff.
ALFONSO: I would do what it takes to clean myself.
HERBELLO: And that's what you got to keep in your head.
HERBELLO: You tell your lawyer, "I want to talk to the state, I want to talk to FDLE --"
ALFONSO: Who's FDLE?
HERBELLO: "-- and I want to cooperate."
ALFONSO: No, no, I don't want to talk to them.
HERBELLO: Okay, "I want to --"
ALFONSO: Let's see what's coming up [unintelligible] with this case.
HERBELLO: "-- I want to cooperate with them a hundred percent, no matter what it might mean." Even though your attorney might be against it. Okay?
Two days later, Herbello met with De Goti.
HERBELLO: Jorge, be careful, man. Don't move. Let me tell you something. You are talking too much to Rene.
DE GOTI: No, but I don't talk to him [unintelligible].
HERBELLO: Okay, listen. When he comes by, you make excuses, you tell him, "Listen, I can't talk to you." Because you know what he told me [unintelligible]? He said, "I'll do whatever I have to do."
That same day Herbello talked to Hernandez.
HERBELLO: I'm telling you right now and I told Jorge, don't trust Rene.
HERNANDEZ: No, I don't talk to him....
HERBELLO: Wait, his words to me were, "I will do whatever it takes [unintelligible] even if it means cooperating with the cops"
Centorino says prosecutors had a feeling Hernandez and De Goti did not trust Alfonso. By having Herbello accuse Alfonso of being a traitor, prosecutors hoped Hernandez and De Goti would come to trust her even more than they already did. "We were able to turn things to our advantage," Centorino explains, "by having her point a finger at him."
HUMBERTO HERNANDEZ: 30 HOURS FOR 30 SECONDS
Set aside for a moment De Goti's colorful use of language and Herbello's knack for undercover work. Are the tapes legally sufficient to convict Hernandez? With little doubt, the answer is no. "The tapes are what they are," says Centorino, "and we have significant evidence outside of the tapes. The tapes are a part of this case, but we will not be relying on them."
Hernandez is accused of taking part in a plan to conceal the vote fraud by creating documents -- lease agreements, rental receipts -- "proving" that people such as Herbello lived within the city when they voted last November.
In the case of Herbello, all that material was given to her before she began cooperating and wearing a recording device. In the months after, she tried to get Hernandez to admit he knew she had been given phony documents. But she never elicits a clear admission on tape.
Instead she receives lawyerly advice: She should not cooperate with investigators; if she is arrested, keep her mouth shut; if trouble looms, contact her own attorney immediately.
Hernandez's tone may sound disrespectful, especially when he tells Herbello that getting arrested is "no big deal," but it is hardly criminal, according to Hernandez's attorney, Jose Quinon.
The greatest value of the tapes seems to be as a propaganda tool for prosecutors. Given 30 hours of secret recordings, the public might naturally conclude that the vast majority of conversations involve Hernandez. They don't. The public might also assume that the principal subjects of discussion are ways to commit vote fraud or ways to cover it up. They're not.
Many of the conversations captured by Herbello are irrelevant and will be useless in court. For instance, one of the tapes includes a section in which De Goti explains to Herbello why he doesn't like to swim in the ocean and the terror he felt after seeing the movie Jaws.
Before the transcripts were released, members of the local media, myself included, relied upon snippets of conversations contained in Hernandez's arrest affidavit and in material provided by prosecutors and investigators during a press conference immediately after Hernandez and others were taken into custody.
Last week I made the mistake of reporting that Hernandez referred to Dade State Attorney Katherine Fernandez Rundle as a "bitch" and a "whore," and to the investigators in general as "fucking scumbags." What Hernandez actually said, according to the transcripts, was that callers on Spanish-language radio were branding Rundle a "bitch" and a "whore." While he certainly didn't distance himself from those remarks, it is unfair to say Hernandez himself used those terms. As for the "fucking scumbag" comment -- that was uttered by De Goti. Other such examples are contained in the tapes.
On May 28 the Miami Herald reported, "Humberto Hernandez and Jorge De Goti joked about taking the '21/2' -- half of their Fifth Amendment right against self-incrimination -- if called to testify during the civil trial brought by former Mayor Joe Carollo. Tell half the truth, Hernandez joked."
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?"
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HERNANDEZ, SR.: Uh-huh, and, and, "How does the room look inside [unintelligible]?"
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.