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The Day the Justice Department Accused Me of Jury Tampering

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In the summer of 1975, I returned to my hometown of Laredo, Texas, to begin the practice of law with my father, who had been a lawyer in Laredo since the end of World War II. I had just graduated from law school at the University of Texas and had just secured my law license from the state of Texas.

Shortly after I returned home, the local federal judge, Robert O’Connor, a longtime family friend who had been appointed Laredo’s first federal judge a couple of years before, appointed me to represent an indigent man who was charged in a multi-count indictment relating to drug-law violations. I’m not absolutely sure, but my recollection is that the drug in question was cocaine.

At that time, Laredo was a major hub for the importation of drugs into the United States. As such, the Drug Enforcement Administration (DEA) had a heavy presence within the town. Shortly after I returned to Laredo, I was in a local bar and a guy struck up a conversation with me. After a while, I asked what kind of work he did. He said he was a salesman. I asked him what he sold. He replied, “Just a salesman.” The conversation didn’t go very far after that. I later saw him in federal court. It turned out that he was a DEA agent.

I got to know several of the DEA agents, guys who were mostly in their late 20s and early 30s. They were nice fellows and totally committed to “winning” the war on drugs, which meant busting as many people as they could. Today, I can’t help but wonder if those DEA agents, who possibly are now on federal pensions or Social Security if they’re still alive, now recognize the utter futility and wastefulness of what they were doing with their lives as DEA agents.

In the 1970s, criminal-defense lawyers in Laredo were making a killing representing drug-war defendants. Retainers and fees were always paid in cash, not checks. A client or his relatives would come into our office and deposit thousands of dollars for attorney’s fees, carefully counting out each $100 bill.

But not the client who Judge O’Connor appointed me to represent. Since he was indigent, he received a free legal defense. The big problem for him was that it came in the form of a lawyer who had just started practicing law. This was my very first jury trial. And it just happened to come in U.S. District Court and against an experienced assistant U.S attorney who was around 30 years old or so.

There were actually two people charged in the case, my client and another indigent client. The judge appointed another lawyer to represent the other defendant. The lawyer was a prominent, highly experienced trial lawyer in his 50s.

Both of our clients were jointly charged in a multi-count indictment, the first of which was a conspiracy count. The other counts of the indictment related to possession and distribution.

To prove someone guilty of conspiracy, the government has the burden of proving two things: first, that two or more people entered into an agreement to commit an illegal act and, second, that they committed an “overt act” to advance the conspiracy.

One of the reasons federal prosecutors would charge people with multiple counts for what was essentially one transaction was that it enabled them to make plea bargains with the defendants. Each count of the indictment entailed a potential 15-year jail sentence. If a person was convicted, say, of 5 counts, he was potentially facing a sentence of 75 years — for what was essentially one drug transaction.

Rarely, however, would federal judges “stack” the sentences. Usually what they would do, upon conviction, is issue the same sentence for each count and then order that the sentences be served “concurrently” — i.e., at the same time. Thus, if a defendant was convicted of 5 counts and sentenced to serve 15 years on each count, the most he would serve was 15 years.

But the risk of “stacking” was always there. Additionally, it was common knowledge among criminal-defense lawyers that some federal judges would punish defendants who went to trial and got convicted by giving them a higher sentence than he would have imposed with a guilty plea. The idea was that the defendant needed to be punished for needlessly costing the judicial system time and expense.

What federal prosecutors would do was offer defendants a plea deal which involved pleading guilty to the conspiracy count and securing a dismissal of all the other counts. That way, assuming the judge accepted the plea bargain, the defendant could be assured that the highest possible sentence he could get was 15 years, which was the maximum possible sentence for each count.

That was the deal that the assistant U.S. Attorney in charge of our case offered our clients. The other defendant accepted the deal, appeared before Judge O’Connor with his attorney, and pled guilty to the conspiracy count. Pursuant to the plea bargain, the other counts were dismissed.

From the first day I interviewed my client, however, he steadfastly insisted on his innocence. I was a brand new lawyer facing an experienced prosecutor but I was certain of one thing: I would never permit my client to plead guilty if he was claiming to be innocent.

I set up a meeting with the federal prosecutor in his office. I said to him that if he would turn over all of the written statements and reports of the DEA agents in the case, perhaps my client would be willing to change his plea after seeing the mountain of evidence against him. The prosecutor handed over a copy of virtually his entire file.

After seeing the large amount of evidence against him, however, my client nonetheless kept insisting on his innocence.

At the same time, after perusing the statements of the DEA agents, something didn’t feel right to me. I began poring over the statements, carefully analyzing and charting them. After countless hours of studying and restudying them, I concluded that my client had been the victim of a complex sting operation, one in which he really was innocent.

Prior to trial, I subpoenaed every single DEA agent who had submitted a written statement in the case. A subpoena is a formal judicial order commanding a person to appear at trial. One advantage of representing an indigent client was that he didn’t have to pay subpoena fees. I could subpoena as many witnesses as I wanted for free.

The DEA agents and the federal prosecutor were undoubtedly wondering why I was subpoenaing DEA agents to potentially testify on behalf of my client.  But I wanted them all there so that each one of them could add his own piece to the overall complex operation. I figured that that was the best way, in addition to cross-examination of the government’s witnesses, to show the jury the exact nature of what I was convinced was a complex sting operation.

The government began calling DEA agents to the stand. Through my questions on cross-examination, I began establishing the nature and details of what we were contending was a complex sting operation. Suddenly, I had DEA agents coming to me during recesses and asking if they could be excused from their subpoena, informing me that they had vacation plans or something else that they needed to attend to. I declined to excuse any of them.

Suddenly, during a recess in the middle of the trial, the assistant U.S. Attorney asked me to come into his office. A DEA agent was sitting in there. In a nice, friendly tone of voice, the assistant U.S. Attorney said to me, “We have received information that you have been in touch with one of the jurors. We don’t want to make a big deal out of it. If you’ll agree to excuse the juror, we can just advise the judge and tell him that we have agreed to having one of the alternates take the place of that juror.”

Imagine that! My very first jury trial — and in federal court — and here I was being accused of jury tampering by the U.S. Justice Department.

I may have been a brand new attorney but I smelled a trap immediately. If I had agreed to excuse the juror in question, they could claim that I was effectively admitting the accusation.

Needless to say, I was fuming mad. I stood up and said to the prosecutor, “Let me tell you something, you little s…o…a…b…. You and I are going into Judge O’Connor’s office and we are going to get to the bottom of this.”

I stormed out of his office and proceeded down the hallway to the judge’s chambers. The prosecutor ran after me, exclaiming, “Wait a minute, let’s talk about this.”

But I wasn’t in the mood to talk, at least not to him. I swept by the judge’s receptionist, opened the closed door to his chambers without knocking, and walked in. (Brand new lawyers can get away with a lot, at least in their hometown.) Needless to say, the judge had a rather surprised look on his face.

I said, “Judge O’Connor, this man has just accused me of jury tampering. I demand a hearing in open court where he and his agents can be put under oath and required to testify regarding this accusation.”

Turning to the assistant U.S. Attorney, the judge said, “What is this all about?”

The prosecutor responded, “Your honor. After the jury was selected, we learned that one of the jurors — a woman — has a close relative who is under criminal charges in state court. One of our agents saw the juror smiling at Mr. Hornberger during one of the times that the jury was entering the courtroom.”

The judge responded, “That’s it?”

The prosecutor said, “Yes, your honor.”

The judge said, “I think you owe an apology.”

The prosecutor said, “Yes, your honor.” He then turning to me said, “I’m sorry for what I said to you.”

We returned to the courtroom and resumed the trial.

The jury returned with a verdict of not guilty on all counts to the indictment. My client, who had been in jail for months, was released and given his freedom on that same day. I had won my very first jury trial, and in federal court.

But there was still a slight problem. The judge still had to sentence the other defendant, the one who had pled guilty to the conspiracy count. That made it a bit awkward for the judge given that a jury had just acquitted the other alleged co-conspirator of conspiracy and all other counts. That, of course, did not prevent the judge from nonetheless meting out a high sentence to the man. But perhaps recognizing the unusual nature of the situation, the judge gave the man probation, which enabled him to also walk out of the courthouse a free man.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.