Just waiting for better health care...
Lars Hall: i'm all about a single-payer system
but i don't think it will happen
Michael S. Morrison: We will still get better
healthcare for everybody...
Michael S. Morrison: Thank God I am a member
of N.M.S the National Masochist Society...I am a
proud member
Michael S. Morrison: Public Opinon
oooooooooo nnnnnnnnnnnnnoooooooooooo
Michael S. Morrison: out of touch..out of touch..
out of touch....
Michael S. Morrison: Will your friends not return
your phone calls...starting to feel like a
Republican...
Michael S. Morrison: Remember bullshit
happens faster and faster with the new
technologys
Michael S. Morrison: You Know you don't get
points for agreeing with me.
The Dilemma of Politics:
There is enough blame for both sides...The Democrat's
smugly assumed that they were going to make the rules
because they had the power (I am a Democrat).
They stopped listening. The Republicans over reacted and
Independents feeling lost double over reacted; but we still
have a system that works even when it gets a little crazy.
And yes I have done this myself as have we all...
Buy a Chevy...
Like my mother used to say...Its not yelling if I am trying to
save your life...
Recap: Democrats not listening...Republicans and everyone
else yelling...what came first chicken or egg..News at 11:00
This problem will not be solved in one day..not one week or
one month..not one year..perhaps not even in this decade...
But It will be solved sooner than later if we all can agree to
disagree...
M.S. Morrison
Politics is a messy business...
M.S. Morrison
Every American must be insured immediately. The
insurance program for government employees is good. It is
a multi provider/insurer system, a proven system that
serves millions of government employees. If the
government will provide access for all Americans to this
system we can solve the heath care crisis. We pay taxes
therefore we already pay premiums to this organization.
If we transition Medicare/Medicaid and vetrans health
benifits into this system we can realize lower costs by
eliminating a duplication of services. We can utilize the
private sector to provide exceptional Health care if we are
willing to trust the democracy of free enterprise and set fair
standards for both consumers and providers.
This is a moon shot: We must bring 300 plus million into the
government employee health care system in 12 months. We
should rename it the National Health Insurance System. No
more walls, no more separate systems, all Americans under
one public/Private system. The government will set the
standards and certify the providers. The private sector will
provide the insurance... private doctors and hospitals will
provide care. This is the way it is in the U.S. Government
employee insurance system today.
All Health insurance premiums will be paid in by paycheck
deductions like Social Security They will not be deducted
for those recieving a wage below the poverty level
anyone on public assistance will have fully paid health care.
Those who do not make wages but recieve income will be
charged quartley through a required tax filing. Everyone
will pay thier fair share by percentage of income and will be
eligable to recieve services. Employers will not be allowed
to pay federal health care premiums for employees just as
they cannot pay Social Security premiums for employees.
A man comes to your door selling health insurance. He tells
you about how good it is, how cheap it will be, and how it
will improve your life. The catch is he is not a participant in
the very same policy or plan he is trying to sell you. Mr
President: we want to be on your heath care plan. Every
American deserves to be on the Presidents plan we will
accept no less.
M.S. Morrison
The only requirement for a good healthcare bill is that all
members of the United States Government...That includes
the President the Congress and the Senate and the
Supreme Court be on the same plan as The People of the
United States of America, And that ALL Americans be
insured under the plan not just a select few.
My fear is that the Retail crash to come could put us all out
in the street.
We could lose up to 70% employment which would be
catastrophic.
Then low wages would be the least of our problems...
Michael S. Morrison There is enough blame for both sides...
The Democrat's smugly assumed that they were going to
make the rules because they had the power (I am a
Democrat) they stopped listening. The republicans over
reacted and independents feeling lost double over reacted
but we still have a system that works even when it gets a
little crazy.
Michael S. Morrison And yes I have done this myself as
have we all...
Michael S. Morrison Buy a Chevy...
2 hours ago · Delete
Michael S. Morrison Like my mother used to say...Its not
yelling if I am trying to save your life...
2 hours ago · Delete
Michael S. Morrison Recap: Democrats not listening...
Republicans and everyone else yelling...what came first
chicken or egg..News at 11:00
Tim Wilson:We had an election which was clearly won by the
party promoting health care reform followed by several
months of open congressional process as not listening.
That's bogus.
Elections have consequences and legislatures have rules.
Both ought to be respected. If the parties so against these
proposed changes had won the election it would be one
story. But they didn't, and the Dems have done a perfectly
fine job of listening to concerns and trying to modify their
proposals to suit those concerns. And the Congressional
process isn't even over.
The status quo is not acceptable, but maintaining that
seems to be all that those who are against the proposed
reforms are trying to accomplish. There's hardly any
evidence of their participating in the process in the spirit
of trying to make reform better.
This pox on both their houses business is not justified
The current system is not working yet you seem to be
caught up in Demo speak ...so let me make this clear...
break down these walls that divide health care... let
everyone into the discussion..Let the American pubic have
their say because millions are feeling disenfranchised. We
are not all as smart as you but we all have lives to live
children to feed and jobs to do.
Tim Wilson: I thought by engaging you rather than
accepting your "agree to disagree" I was doing just that.
And the only thing I'm aware of that shutting anyone out of
the discourse is the loudmouths at town hall meeting
shouting down their representatives and fellow citizens.
I guess I now see that we will have to agree to disagree,
but I am also glad that I gave it another shot. I regret that
you perceive any speaking in support of administration
proposals or those coming from the House and Senate as
"Demo speak." I do happen to support those proposals; it
would be disingenuous of me to pretend otherwise. I'm not
changing my mind about that just because of your
perception that the process hasn't been open to ideas from
all. I still regret that you see things that way.
Sorry I can't do a better job of persuading you. Best wishes
Michael S. Morrison:I wish that we could have met in the
middle...
State of Siege: Drug-Related Violence
and Corruption in Mexico
Unintended Consequences of the War on
Drugs
By Laurie Freeman
The war on drugs plunged Mexico into violent depths in
2005, especially along its
northern border. Drug-related homicides soared, and
former elite soldiers on the
payroll of a drug cartel were responsible for numerous
kidnappings and killings.
Murder victims’ tortured bodies frequently appeared on
roadsides in key drug trafficking
hubs throughout the country – and scores more victims,
including more than 40 U.S.
citizens, vanished without a trace. From within maximum
security prisons, cartel leaders
continued to run their illegal enterprises, killing rival
inmates and ordering hits on
enemies beyond the prison walls. Wild shootouts erupted
on city streets as police and
soldiers battled criminals, who on occasion were
themselves law enforcement officials in
the employ of traffickers.
This record-breaking year of drug-related violence closed
on a chilling note – with
the release of a video showing four bound and bloodied
men describing to unseen interrogators
their work as drug cartel assassins and alleging corruption
in the highest levels of
Mexican law enforcement. The video ends when one man is
shot point-blank in the head
by his off-camera captor.
Hundreds of soldiers and federal police were deployed to a
number of Mexican cities
ravaged by drug-related violence, but the killings
continued, in some cases at accelerated
rates. The border city of Nuevo Laredo, for example, which
recorded 180 killings in 2005,
witnessed 93 in the first four months of 2006 alone.
Drug traffickers have become the law of the land in many
Mexican cities because of
their ability to corrupt and threaten public officials. People
view the police with distrust
Altar to La Santa Muerte outside Nuevo Laredo
2 State of Siege: Drug-Related Violence and Corruption in
Mexico
and fear, and believe that every security
force – whether municipal, state, or federal
– has a core group of members who are
aligned with one cartel or another.
Overcoming the violence and corruption
wracking Mexico will be incredibly
difficult; uncovering the truth from beneath
its tangled web may be impossible. But
reducing drug-related violence and corruption
is necessary for Mexico to become a
country governed by the rule of law.
However, the nature of the drug trade
and the current policies used to combat
it mean that Mexico cannot achieve this
task alone. The United States in particular
must share responsibility for overcoming
violence and corruption in Mexico for two
reasons. First, cocaine, heroin, marijuana,
and methamphetamines are trafficked
through Mexico to meet demand in the
United States, which remains strong and
in some cases appears to be growing. Even
more fundamentally, the United States has
chosen to prohibit such drugs, a strategy
that in all probability keeps drug use lower
than would be the case under some form
of legalization, but at the cost of creating
a large black market where violence and
corruption are the coin of the realm. There
is no sign that either the Democratic or
Republican party is contemplating a shift
away from the basic U.S. stance of drug
prohibition, meaning that Mexico will
have to contend with the consequences for
the foreseeable future.
Drug prohibition as enacted and
enforced by the United States may be
intended to keep drug use low, but there
can be no doubt that it also stimulates and
nourishes organized crime, both within and
beyond U.S. borders. The consequences
– richer, more powerful criminal organizations
that create mayhem and flout the rule
of law – are no less real for being unintended.
The U.S. public and policymakers must
be honest about this tradeoff and not avert
our gaze from the corruption and violence
that drug prohibition and the continuing
U.S. demand for illicit drugs have helped
to fuel in Mexico and other Latin American
countries.
This is not to suggest that even a sharp
reduction in the profits generated by the
illicit drug trade would transform Mexico
overnight into a paradise of good government
and rule of law. The drug trade did
not create the institutional problems that
have long plagued Mexico, such as widespread
corruption, ineffective and abusive
police forces and prosecutors’ offices, and
a weak judiciary. But the drug trade does
feed upon, magnify and exacerbate these
problems. A frank acknowledgement on
the part of both the U.S. and Mexican
governments of shared responsibility for
the causes of the violence besieging Mexico
is the first step to finding more effective
approaches to reducing it.
This brief provides an overview of the
current drug trafficking landscape in Mexico
and the extreme drug-related violence
it has generated in recent years – including
more than 2,000 murders since 2005, most
of them unresolved. It also analyzes the impact
of U.S. and Mexican policies intended
to address the problems of violence and
corruption, and offers recommendations
for how Mexico and the United States can
more effectively confront them.
It is important to bear in mind that drug
prohibition and the sizable U.S. market for
illegal drugs make the challenge of ensuring
public order and public safety in Mexico
immensely more difficult. Under these
conditions, dramatic improvements should
be considered unlikely. With expectations
tempered, modest but nonetheless significant
improvements should be the goal.
Cartel Competition
Most analysts trace the current brutal
phase in Mexico’s drug war to early in the
administration of President Vicente Fox,
when one cartel leader escaped from prison
and members of rival groups were killed
and jailed. These incidents are thought to
have altered the balance of power among
Mexico’s four main drug trafficking organizations
(the Sinaloa, Tijuana, Juárez, and
Gulf cartels, named after their places of origin),
which responded by waging an all-out
war for control of key trafficking routes.
In January 2001, Joaquín “El Chapo”
Guzmán of the Sinaloa cartel escaped
Drug prohibition as
enacted and enforced
by the United States
may be intended to
keep drug use low, but
there can be no doubt
that it also stimulates
and nourishes organized
crime…. The consequences
– richer, more
powerful criminal
organizations that
create mayhem and
flout the rule of law –
are no less real for
being unintended.
Washington Office on Latin America June 2006 3
from the Puente Grande federal maximum
security prison, spirited out in a laundry
bin after bribing a chain of prison guards
and employees.
Meanwhile, the Fox Administration
began closing in on the Tijuana cartel,
which was led by brothers Ramón and
Benjamín Arellano Félix. Ramón was
killed by police in February 2002, and a
month later the Mexican army captured
his brother Benjamín. These blows against
the Tijuana cartel strengthened its Sinaloa
rivals, allowing them to focus their efforts
on Nuevo Laredo.
Nuevo Laredo is the most important
launching point for illegal drugs entering
the United States. Every day an estimated
6,000 trucks, carrying 40 percent of all
Mexican exports, cross into Laredo, Texas,
where Interstate 35 whisks them up to
Dallas, and from there throughout the
United States. The very conditions that
make Nuevo Laredo so attractive to legal
commerce also make the city ideal for the
illicit drug trade.
Like Chapo Guzmán of the Sinaloa
cartel, Osiel Cárdenas of the Gulf cartel was
also making inroads into Nuevo Laredo. In
early 2002, Cárdenas enticed a few dozen
elite soldiers – members of special forces
groups that had been sent by the Mexican
government to combat drug trafficking in
northern Mexico – to desert the army and
become his enforcers and security specialists.
Known as the Zetas, their inside
knowledge of the Mexican security forces
and their expertise with sophisticated
weaponry, intelligence gathering, surveillance
techniques, and operational planning
gave Cárdenas an edge over his competitors.
According to the FBI, “Unlike other traffickers,
the elite military background of its
leaders allows [the] Zetas to mount complicated,
precise operations.”1
Both the U.S. and Mexican press have
reported that some Zetas received U.S.
military training while they were members
of the Mexican special forces groups, or
GAFEs (Grupos Aeromóviles de Fuerzas
Especiales). While WOLA was unable to
confirm those allegations, it is clear that
some of the Zetas were GAFE members
and that hundreds of GAFE members were
trained at Fort Bragg and Fort Benning in
the mid-to-late 1990s as part of a U.S. program
to train and equip Mexican soldiers
for anti-drug operations, under the logic
that the police had been infiltrated, outgunned,
and generally overwhelmed by the
cartels. The GAFEs’ training emphasized
small unit tactics, use of advanced weapons,
surveillance techniques, and intelligence
gathering. They were deployed to various
parts of Mexico, particularly in the north,
to combat drug traffickers.2
Cárdenas reportedly sent the Zetas to
Nuevo Laredo to eliminate some of the local
traffickers who had traditionally controlled
the drug trade there. Their murders in May
2002 allowed Cárdenas to consolidate his
grip over the city. He enjoyed supremacy for
almost a year before his arrest in March 2003
after a fierce gun-battle against Mexican
soldiers in the streets of Matamoros. He was
sent to the La Palma maximum security
prison outside Mexico City.
The arrests of Arellano and Cárdenas,
rather than halting the flow of drugs,
merely altered the balance of power among
cartels and opened a Pandora’s Box of violence.
With Nuevo Laredo up for grabs, the
Sinaloa cartel, bolstered by blows against
its rivals, moved in with a vengeance.
Violence skyrocketed as the Zetas battled
to retain the Gulf cartel’s power over the
city, and the Sinaloa cartel’s gunmen vied
to wrest it from them.
Putting some of the country’s mostwanted
cartel leaders in prison did not
effectively remove them from the drug
trade. Federal prisons, which had once
been considered less corrupt than state
ones, became infiltrated by organized
crime. Traffickers were able to hold
lengthy meetings with visitors and send
orders through them regarding cartel operations.
Prisoners had access to a range
of perks and luxury items such as stereos,
televisions, special food and clothing,
and cell phones; they were also able to
smuggle in weapons. These lax conditions
allowed jailed traffickers to continue
running their businesses from the relative
safety of prison. Cárdenas retained
control of the Gulf cartel thanks to these
conditions and to the loyalty of the Zetas.
An acknowledgement
on the part of both
the U.S. and Mexican
governments of shared
responsibility for the
causes of the violence
besieging Mexico
is the first step to
finding more effective
approaches
to reducing it.
4 State of Siege: Drug-Related Violence and Corruption in
Mexico
Welcome to Nuevo Laredo
Two massive concrete skeletons, wrapped
in cloaks and carrying sickles, stand guard
on the side of the highway leading into
Nuevo Laredo from the south. Behind them
are several chapels filled with pictures of
menacing skeletons and candles, beer cans,
cigarettes, and other offerings to the “La
Santa Muerte,” or the cult of Saint Death.
This foreboding presence is a source of
strength for local drug traffickers seeking
protection in a dangerous business, as well
as a warning to outsiders who venture to
Nuevo Laredo to make their fortunes in the
lucrative drug market.
And it is an unfortunate though fitting
symbol of Nuevo Laredo, which as the
center of Mexico’s drug war has become
the country’s murder capital. During 2005,
there were more than 180 killings in this
city of 350,000 (compared with 68 the year
before), and the murder rate during the
first four months of 2006 was even higher.3
From January through May 2006, there were
114 drug-related killings in Nuevo Laredo,
compared with 45 during the same period
the previous year.4 Shootouts on city streets
are frequent occurrences, some lasting as
long as 30 minutes; on occasion cartels have
used grenades and bazookas to attack their
enemies and intimidate their critics.
While Nuevo Laredo was always an
important drug trafficking hub, the city has
never experienced violence of this nature
or intensity before. In the past, the drug
trade through the city was controlled by
two local groups that divided the city in
half, more or less respected each other’s
turf, and conducted their business in relative
calm. That changed after the arrival of
the Zetas, who eliminated local traffickers
so that the Gulf cartel could seize control of
the Nuevo Laredo corridor.
The Zetas have pursued a number of
strategies for gaining the upper hand in
Nuevo Laredo. They have cowed and corrupted
the municipal police, converting
them into their spies, protectors, and enforcers.
Municipal cops under their control
kidnap members of competing drug trafficking
organizations and hand them over to
the Zetas to be held for ransom or tortured
into revealing information about their
To shore up his
weakening hold over
that turf, Cárdenas
allegedly made an alliance
with Arellano
in prison (facilitated
by the fact they were
kept in adjacent
cells). Police reportedly
uncovered a
video of Cárdenas,
Arellano, and other
traffickers holding a
friendly meeting with
the superintendent
of La Palma prison
in early December
2004.
Traffickers’ control
over the prison
also allowed them
to order executions
of rival traffickers
within. Drug-related
violence shifted into high gear on the last
day of 2004, when Chapo Guzmán’s brother
was assassinated in La Palma prison.
(His killing followed the murders of two
other La Palma prisoners – including the
shooting death of one of Guzmán’s associates
in October.) The murder of Guzmán’s
brother sparked a new round of killings as
cartels sought to exact vengeance against
each other or retaliated against the government
for its subsequent clampdown on the
prison system.
On January 14, 2005, amid rumors that
the Zetas were planning to help Cárdenas
escape, the Mexican government sent
nearly 1,000 soldiers and federal police to
re-take La Palma prison, in order to separate
kingpins from one another (to prevent both
burgeoning alliances and deadly disputes)
and transfer others to a maximum security
prison in Matamoros. The cartels retaliated
by kidnapping and executing six Matamoros
prison employees. Their tortured bodies,
blindfolded and with hands bound, were
found on January 20 in an SUV outside the
prison entrance. They had been abducted as
they were leaving prison the morning before
by a group of gunmen, presumably the Zetas,
who had set up a fake roadblock.
Offerings to La Santa Muerte,
Nuevo Laredo
PHOTO BY LAURIE FREEMAN, WOLA
According to the
FBI, “Unlike other
traffickers, the elite
military background
of its leaders allows
[the] Zetas to mount
complicated, precise
operations.”
Washington Office on Latin America June 2006 5
operations. The Zetas have also formed
networks of look-outs and informants
among local taxi drivers, food vendors, and
others who monitor comings and goings
of rival traffickers and law enforcement officials.
The Zetas have become involved in
extortion and kidnapping as lucrative side
businesses. They have also implemented a
systematic campaign to manipulate press
coverage of the drug war.5
To compete against these tactics,
enforcers for the Sinaloa cartel (known as
the Negros) responded in kind, bribing,
threatening, and killing police and other
public officials, intimidating the media,
and engaging in a bloody street war with its
Gulf cartel rivals. And as the cartels battled
each other, violent ambushes, shoot-outs,
and murders became routine occurrences in
Nuevo Laredo.
The federal government sent more
than 700 soldiers and federal and state
police to patrol the city in early March
2005, but violence continued to escalate.
In one of the most brazen attacks, radio
journalist Guadalupe García Escamilla,
who had been receiving death threats over
the police radio frequency, was shot nine
times outside her Nuevo Laredo office on
April 5, 2005. She died after more than a
week in intensive care.
As bodies piled up, Nuevo Laredo’s
mayor appointed Alejandro Domínguez, a
well-known businessman, to serve as the
city’s police chief. Domínguez made it clear
that he would not negotiate with the cartels.
As he was leaving his office on June 8
– his first day on the job – he was ambushed
and killed by gunmen.
In response, on June 11 the Mexican
government launched Operation Safe
Mexico (Operativo México Seguro, OMS),
which involved sending hundreds more
troops and federal police to Nuevo Laredo
and other cities wracked by violence, in an
attempt to wrest control from drug traffickers
and corrupt police.
Federal forces entering Nuevo Laredo
encountered serious resistance from the
municipal police, who shot at them to defend
their turf; forty-one municipal police
were arrested. Federal officials removed all
of the city’s 700 police officers from their
jobs while investigating them for corruption,
and less than half were cleared to
return. Further evidence of the municipal
cops’ ties to traffickers came on June 26,
when the federal police rescued 44 people
that municipal police had kidnapped on
behalf of the Zetas.
Yet violence did not abate after the
federal forces’ arrival in Nuevo Laredo with
OMS. The following month, on July 28, explosions
and gunfire shook a neighborhood
near downtown Nuevo Laredo’s main shopping
complex as drug traffickers battled each
other with AK-47s, bazookas, and grenades
for at least thirty minutes. None of the
myriad municipal, state, and federal security
forces stationed in Nuevo Laredo arrived
at the scene. The U.S. consulate closed
the next day, citing safety concerns for its
employees and Mexicans seeking visas.
Hundreds more Mexican police and
soldiers moved into Nuevo Laredo to try to
restore order, but violence continued. On
August 5, city council member Leopoldo
Ramos, president of Nuevo Laredo’s public
security commission, was killed along with
his bodyguard by gunmen who shot up his
truck with automatic weapons.
Violence seemed to lessen towards the
end of 2005, but spiked again in mid-
January 2006. Around noon on February
2, armed men attacked a group of Federal
Preventive Police agents (Policía Federal
Preventiva, PFP), injuring two agents and
two civilians. The gunmen were allegedly
trying to kill two detainees in PFP custody.
On February 5, the newspaper El Mañana
published a photo of one of the injured
agents, revealing his identity and information
linking him to the Sinaloa cartel. On
February 6, two masked gunmen entered
the offices of El Mañana, shooting assault
rifles and throwing at least one grenade; one
reporter was critically injured in the attack.
In March, Tamaulipas state police chief
Victor Berrones and another officer were
killed in Nuevo Laredo by gunmen who
sprayed their patrol car with bullets for
more than 15 minutes. Six hundred federal
agents arrived in Nuevo Laredo on March
15 to crack down on continued crime and
violence, and the next day four of them were
ambushed and killed by gunmen. The agents
Both the U.S. and
Mexican press have
reported that some
Zetas received U.S.
military training while
they were members
of the Mexican special
forces groups, or GAFEs
…. While WOLA was
unable to confirm
those allegations, it
is clear that some of
the Zetas were GAFE
members and that
hundreds of GAFE
members were trained
at Fort Bragg and Fort
Benning … as part of
a U.S. program to train
and equip Mexican
soldiers for anti-drug
operations.
6 State of Siege: Drug-Related Violence and Corruption in
Mexico
were members of a special operations and
intelligence unit of the PFP who had been
conducting surveillance of an office building
housing the Federal Investigative Agency
(Agencia Federal de Investigaciones, AFI). A
week later, Nuevo Laredo police chief Omar
Pimentel resigned after eight months on the
job. (When this report went to press in early
June, he had still not been replaced.)
On April 8, armed men attacked municipal
police, killing one. A week later, on
April 25, gunmen shot forty rounds at two
other municipal police who were guarding
the house of the city’s number two police
official. One was killed and the other was
injured. Two days later, on April 27, gunmen
attacked a group of mechanics in their
workshop; a 58-year-old woman who was
grocery shopping was caught in the crossfire
and died immediately. She was the 93rd
victim to die violently in Nuevo Laredo
since the year began.
Paralyzed by Fear
Widespread and unchecked violence creates
a palpable sense of fear and tears at the social,
cultural, and economic fabric of Nuevo
Laredo. As the war between cartels rages,
no one – not police, not journalists, not
ordinary citizens – knows whom they can
trust, so they trust no one. In the words of
one journalist, violence and fear “render the
state useless and the citizenry defenseless.”6
According to one U.S. official, “It is
impossible to overestimate the level of fear
on the Mexican side among government
and police officers.”7 Because there are two
groups fighting for supremacy, anything
public servants do that is interpreted as
benefiting one group – such as trying to
take down its rival – makes them the target
of the other. As a result, fear paralyzes them
into inaction. Municipal and state officials
also insist that the problem is not theirs
to solve, since drug trafficking is a federal
crime, or they engage in denial, claiming
that the situation is improving and that the
violence will soon end. It seems as if many
Mexican officials are resigned to let events
unfold and to let one group win so the
violence will finally abate.
Residents are afraid to go out for fear of
getting caught in the crossfire. Those who
can do so move their homes and businesses
across the border to Laredo, Texas, leaving
empty shops and restaurants behind them.
Many residents who remain have participated
in a campaign for peace, but that
effort was hobbled by rumors that people
with peace stickers on their cars would be
shot. People are resigned to the violence;
one reporter remarked that, “in Nuevo
Laredo, drug trafficking and death are as
natural as our having coffee right now.”8
There are currently about 40 U.S.
citizens who have vanished in and around
Nuevo Laredo. Some of the American victims
may have been involved in the drug
trade. Others appear to have been innocent
victims of kidnapping for ransom schemes
or simply of thugs accustomed to operating
beyond the reach of the law. Among the
missing is Jerry Contreras, a 17-year-old
from San Antonio, Texas. He had driven to
the town of Piedras Negras in Tamaulipas
state to attend a baby shower. According to
witnesses, “he became involved in a minor
accident with a gold SUV, whose enraged
driver rammed Contreras’s Ford Escort, followed
him to the party and threatened him.
Contreras ran and hid in a grocery store,
but several armed men dragged him out. He
has not been seen since.”9
One priest in Nuevo Laredo admitted
to being careful not to speak out too forcefully
against violence and corruption, out
of fear that he could make the situation
worse or invite the wrath of an unknown,
hidden enemy that “could be in the government
itself.”10
Silencing the Media
Journalists, too, are terrified of the hidden
enemy lurking within and without. They
wonder which of their colleagues may be
on the payroll of drug traffickers. They anguish
about what might happen if sensitive
information slips through their filters and is
published in the paper.
The drug war is having a chilling effect
on the Nuevo Laredo news media. Although
the morning and evening editions of
As the war between
cartels rages,
no one – not police, not
journalists, not ordinary
citizens – knows whom
they can trust, so they
trust no one.
Washington Office on Latin America June 2006 7
local newspapers carry screaming headlines
and graphic photos of the city’s latest murders,
there is little real coverage of the drug
war gripping the city. The basic information
regarding the killings – the who, what,
when, and where – is covered, but the why
and how are notably absent. Journalists are
no longer willing to ask those questions;
they are afraid of where the answers will
take them or how the answers will endanger
them. This chilling effect fostered a desire
for anonymity among journalists who provided
background for this publication.
Since March 2004, three journalists
have been killed in Nuevo Laredo: El
Mañana editor Roberto Mora García, radio
reporter Guadalupe García Escamilla, and
radio announcer Ramiro Téllez Contreras.
None of these crimes has been credibly
resolved. Police charged Roberto Mora’s
neighbors, a gay couple, with his killing,
alleging it was a crime of passion. Both
men were tortured into confessing to the
murder, and one of them, U.S. citizen Mario
Medina, was stabbed to death in prison
two months later.11
Media self-censorship is a natural reaction
to the danger drug-war reporting poses
for journalists everywhere. But it has taken
on unique characteristics in Nuevo Laredo,
where manipulating the media has become
a weapon in the war between drug trafficking
organizations. Through bribery and
threats, the cartels seek to manage their
publicity, in order to minimize knowledge of
their weaknesses, avoid calling too much attention
to their strengths (which could invite
unwanted law enforcement), and turn
public opinion against rival groups and their
protectors in law enforcement agencies.
The Zetas in particular reportedly have
undertaken a deliberate media campaign
aimed at highlighting rival traffickers’
responsibility for crimes of violence and
corruption, building up the myth of the
Zetas’ indomitable power, and downplaying
events that expose the Zetas’ weaknesses.
Numerous journalists described how the
Zetas approach reporters, offering bribes
and intimidating them with veiled threats
(“Don’t write about that, it’s dangerous”) or
more explicit ones. The Zetas also subject
journalists to the “levantón,” by which they
force them into cars and drive them around
for several hours, beating them and instructing
them as to how to cover the news.12
Reporters also told WOLA that the
Zetas have a press liaison who tells reporters
what they can and cannot print about
specific drug-related incidents. The Zetas
don’t like to see stories about their dead;
it detracts from their aura of power. When
a man worshiping at the altar to death at
the entrance to Nuevo Laredo was gunned
down in March 2006,13 for example, local
journalists who went to cover the incident
were intercepted, turned away, and told to
only report the barest of the facts, and not
to even mention where the murder took
place.14 The Zetas also try to highlight
unfavorable coverage of rival cartels, either
by submitting written stories to media contacts
or by providing them with incriminating
photos and information.
The Sinaloa cartel also uses the media
to attack its rivals in the Gulf cartel. On
May 28, 2006, wanted drug trafficker Edgar
“La Barbie” Valdez published a paid ad in
a Mexico City daily in which he described
the Zetas as “narco-kidnappers and murderers
of women and children,” accused them
of a campaign to discredit him, and alleging
that they have bought protection from state
officials and agents in Mexico’s federal attorney
general’s office.15 Valdez is believed
to be the head of the Negros, the Sinaloa
cartel’s answer to the Zetas.
Stories that anger cartels can endanger
journalists and their colleagues, making
decisions about what to report incredibly
difficult for the local media, who have to
balance their duty to provide information
with their responsibility to protect
their employees from reprisals. Shaken
by the grenade attack against El Mañana,
the newspaper decided not to cover the
drug war any more, telling its readers in
a letter that, “To avoid any infiltrations
we have decided to suspend any publication
of anything that has to do with the
war taking place in Nuevo Laredo.”16 One
newspaper owner interviewed by WOLA
said he agrees not to publish stories that the
Zetas don’t want to see in print, in order to
protect his employees, but that he refuses
to run stories attacking the Zetas’ rivals,
Media self-censorship
is a natural reaction to
the danger drug-war
reporting poses for
journalists everywhere.
But it has taken on
unique characteristics
in Nuevo Laredo,
where manipulating
the media has
become a weapon
in the war between
drug trafficking
organizations.
8 State of Siege: Drug-Related Violence and Corruption in
Mexico
because doing so would amount to taking
sides in the cartels’ battle and endanger his
employees even more.
Self-censorship has also been made
necessary by the fact that some journalists
do accept bribes and take sides in the war
between cartels. Not long after Guadalupe
García’s death, rumors began to circulate
that she was not an innocent victim, but
had actually been paid by the Zetas to
control the kind of drug-related news that
aired on her program by downplaying her
coverage of the Gulf cartel. Some dismiss
the allegations as a convenient way for the
authorities to let themselves off the hook
for not investigating the crime. But many
others, including local journalists, believe
the allegations that García was somehow
working for the Gulf cartel.
Whether or not these allegations are
true, they are poisonous to the public’s trust
in the media, put all journalists at risk, and
cripple the possibilities for real investigative
journalism. Intrepid journalists who dig
too deep into one cartel’s network of complicity
and corruption may be perceived
as taking sides. This stifles reporting on
organized crime and its link to law enforcement
institutions.
A Failed Show of Force
According to federal officials, the purpose
of Operation Safe Mexico (OMS) was
“to confront and combat the eruptions
of violence that have appeared in recent
dates in certain regions of the country,
the product of disputes between organized
crime groups.”17 Originally carried out in
three states – Tamaulipas, Baja California,
and Sinaloa – the Operation later extended
to others, including Michoacán, Mexico
State, Guerrero, and Chiapas.
By some initial accounts, OMS in
Nuevo Laredo seemed specifically targeted
at breaking the drug cartels’ penetration of
the municipal police. According to presidential
spokesman Rubén Aguilar, “there
is reasonable evidence that drug trafficking
has penetrated municipal police structures…,
and this operation is, above all, an
investigation into the [local] police....”18 He
added that OMS intended to purge local
police bodies infiltrated by drug-related corruption.
Indeed, its first major action was
detaining hundreds of Nuevo Laredo police
suspected of ties to traffickers and subjecting
them to drug and lie detector tests.
In addition to conducting the Nuevo
Laredo police purge, federal agents in Tijuana,
Mexicali, Culiacán, and other cities were
“deployed to the streets, plazas, avenues,
and neighborhoods to reinforce security
and deter and prevent the commission of
all kinds of crimes.”19 They stepped-up their
investigation of federal crimes, executed
outstanding arrest warrants, and established
checkpoints to search for illegal drugs and
weapons and to detain wanted criminal
suspects. While deployed to these cities,
federal agents were also supposed to undertake
“broader and deeper … investigations
related to the leaders of criminal gangs” and
“gather evidence against dangerous criminals
that have remained beyond the reach of the
law through acts of corruption and intimidation
with the local authorities.”20
It may have originally been conceived
as an operation to combat violence and
police corruption in key drug trafficking
hubs, but OMS turned out to be little more
than a catch-all for already ongoing federal
government efforts to prevent and investigate
a range of federal crimes, including
drug trafficking, drug dealing, contraband,
migrant trafficking, vehicle theft, and illegal
weapons possession. Although the presence
of the army and federal police was intensi-
Federal Preventive Police on patrol
in Nuevo Laredo.
PHOTO BY LAURIE FREEMAN, WOLA
Operation Safe Mexico
has failed to achieve its
objectives. Rather than
reduce drug-related
violence and police
corruption in Nuevo
Laredo, both appear to
be on the rise.
Washington Office on Latin America June 2006 9
fied in certain cities, what distinguished
OMS from the federal government’s normal
activities (with the exception of the Nuevo
Laredo police purge) was the intensity of the
effort – the strategy had not changed at all.
Soon, any federal law enforcement
effort – such as the deployment of soldiers
to eradicate illegal drugs, a task the army
has been carrying out since the 1940s – was
characterized as part of OMS. Mexico’s
response to these “eruptions of violence” in
Nuevo Laredo, then, differed little from its
ongoing federal law enforcement or counter-
drug efforts.21
OMS has failed to achieve its objectives.
Rather than reduce drug-related violence
and police corruption in Nuevo Laredo,
both appear to be on the rise. It is widely
believed that drug cartels have infiltrated
all of the security forces in the city, with
some supporting the Gulf cartel while others
work for their competitors from Sinaloa.
According to journalists and U.S. officials,
the Zetas continue to control a core group
of the Nuevo Laredo municipal police and
use violence and threats to intimidate the
rest. Federal police forces have also allegedly
been infiltrated; analysts point out
that there have been no arrests of major
drug traffickers in Nuevo Laredo despite an
intense federal law enforcement presence
since June 2005. Other suspicious incidents
point directly to collusion between cartels
and corrupt police agents, such as when the
PFP agent injured in an ambush allegedly
turned out to working for the Sinaloa cartel.
Causes of Violence
Drug-related violence in Mexico is largely
a consequence of the drug trade’s illegality.
Drug markets “operate without the usual
protections against fraud and violence
offered by the [legal] system. … Contracts
cannot be enforced through written documents
and the legal system; agreements are
made hurriedly, sometimes in ambiguous
code, and orally.”22 As a result, contracts
are settled privately and often with violence.
Violence, in addition to being used
between competing organizations, is also a
tool for disciplining subordinates, punishing
traitors, and moving upward in the
ranks within an organization.
Violence between competing organizations
can easily intensify as they get greedy
for more of the profits. If the only thing
preventing one group from dominating the
market is its rival, eliminating the competition
and reaping the benefits can be preferable
to dividing up territory and settling for
less. Similarly, violence is often the product
of personal vendettas between drug traffickers,
who strike at each other’s organizations
to avenge murders of family members or
close associates. Once these reprisals start,
they easily spiral out of control and overshadow
the business side of the drug trade.
The fight between the Gulf and Sinaloa
cartels has personal overtones: Osiel Cárdenas
was allegedly responsible for the murder
of Chapo Guzmán’s brother, setting off a
violent chain reaction of reprisals.
Increased rates of drug-related violence
in Mexico in recent years can also be attributed
to the Mexican government’s successful
capture of top traffickers, which has
weakened formerly powerful organizations,
opening space for others to move in and replace
them. A blow to one cartel becomes
a business opportunity for another, and the
winner uses violence to establish control
over new routes and territories. For this
reason, “aggressive drug enforcement might
actually increase drug-related violence.”23
The violence in Nuevo Laredo is certainly
an example of the unintended consequence
of Osiel Cárdenas’s incarceration.
Much the violence is caused by the fight
for control of the “plaza,” or the concession
to run the narcotics racket through the
city; drug traffickers essentially pay off authorities
in exchange for the rights to traffic
drugs unmolested into the United States.24
But the violence is also about ensuring
that the money from drug sales makes it
back to the cartel bosses in Mexico, who
want to benefit from the price markup that
occurs after drugs successfully cross the
border. In order to ensure that the money
reliably comes back to them, cartel bosses
must exert control along the length of the
distribution network. Loyalty is essential;
violence is a way to achieve it by discouraging
double-crossers.
Drug-related violence
in Mexico is largely a
consequence of the
drug trade’s illegality.
10 State of Siege: Drug-Related Violence and Corruption in
Mexico
The Zetas have imbued the drug war
in Nuevo Laredo with particular brutality,
generating violence that is “more sophisticated
and more savage.”25 The Zetas use
advanced weaponry to attack and ambush
rival organizations but also kidnap and
execute their enemies, then burn their bodies
in fuel-filled barrels. The Zetas zealously
guard the Gulf cartel’s turf and collect taxes
on illicit activities in the Gulf cartel plazas,
kidnapping, beating, torturing, and sometimes
killing those who refuse to pay. These
same techniques are used to discipline
collaborators who lose or steal shipments
or cooperate with rival organizations and
to gather intelligence about rival groups.
Despite the deaths of some of the original
Zetas, membership continues to grow
through new recruits, including some from
the police and military; one FBI assessment
reports that the new members “are allegedly
more violent than their leaders and may be
behind much of the drug-related turmoil
occurring along the border.”26
The existence of the Zetas prompted
the Sinaloa cartel to organize a similar
band of enforcers, the Negros, with its
own style of violence and a penchant for
high-powered assault weapons. They are
thought to be responsible for the recent rise
in attacks against police officers in Nuevo
Laredo, in an attempt to wrest control over
the local police from the Zetas.27
Many also attribute the rising drug-related
violence in Mexico to that country’s
political transition from one-party rule
to electoral democracy. Academic Luis
Astorga argues that under the PRI, police
and intelligence institutions – notably the
Federal Security Directorate (DFS) and the
Federal Judicial Police (PJF) – regulated,
controlled, and contained the drug trade,
protecting drug trafficking groups and
mediating conflicts between them. Yet as
the PRI lost its hold on power, state apparatuses
no longer set the rules of the game
or resolved conflicts. Traffickers resorted to
violence to enforce deals with customers,
settle scores with competing organizations,
and intimidate or exact revenge against law
enforcement agents.28
And finally, drug-related violence is
fueled by the relative ease with which
traffickers obtain weapons, increasingly
high-caliber weapons like AR-15s and AK-
47s. About 80 percent of illegal weapons
in Mexico are trafficked from the United
States,29 most of them purchased legally at
gun shops or gun shows (which allow unlimited
purchases of handguns and automatic
weapons, sometimes without any background
check), then transferred to third
parties or re-sold on the black market.30
Some Mexican and U.S. officials attempt
to paint a positive picture of Mexico’s
counter-drug campaign, even claiming that
rising violence is an indicator of success.
In one interview, President Fox said, “Why
are we having all these homicides and all
these crimes on the streets? Because we’ve
been winning the campaign. The more we
destroy the production of drugs, the more
we catch drugs in transit,…the more [drug
traffickers] are desperate and challenging
the authorities.”31 U.S. drug czar John
Walters made a similar claim about the rise
in Mexico’s drug-related murders: “Unfortunately
this is one of the possible signs of the
efficacy” of anti-drug efforts.”32
But an increase in murdered traffickers
doesn’t translate into fewer drugs entering
the United States. Rival traffickers or those
new to the business are only too eager to
replace them and move a product for which
there continues to be strong demand.
Despite the increasing body count, Mexico
continues to be the transit route for 70 to
90 percent of the illegal drugs trafficked
into the United States.33
It is disturbing that the rising murder
rate is being used as an indicator of counter-
drug success. First, it assumes that the
victims are drug traffickers and that their
murders will have an impact on the drug
trade. Second, by attributing the murders
to underworld vendettas and implying
that the victims were traffickers who got
their comeuppance, it belies a disregard for
the rule of law, where suspected criminals
are innocent until proven guilty and are
prosecuted in the courts rather than summarily
punished. And third, it assumes that
innocents will not be harmed.
These sentiments are shared by many
politicians and law enforcement officials
throughout Mexico. In Nuevo Laredo, a
Increased rates
of drug-related
violence … can also
be attributed to the
Mexican government’s
successful capture
of top traffickers….
A blow to one cartel
becomes a business
opportunity for
another, and the
winner uses violence
to establish control
over new routes and
territories.
Washington Office on Latin America June 2006 11
Though Nuevo Laredo is the epicenter of drug-related
violence, the problem has reached
extreme and in some cases unprecedented levels
throughout Mexico. According to
Mexican newspaper El Universal, Mexico witnessed at least
1,537 drug-related killings
between February 18 and December 31, 2005.1 Drug-related
homicides continued apace in
2006, with 860 from January to mid-June.2
Tijuana, Baja California state: There were a record-breaking
396 drug-related homicides in
2005, compared with 355 in 2004. The violence is attributed
to the weakening of the Arellano
Félix cartel and attempted inroads into their territory by
other trafficking groups, principally the
Sinaloa cartel. Cartel enforcers were responsible for
kidnapping and killing businessmen and
other prominent residents. In one brutal case, a popular
local priest, Luis Velázquez Romero, was
killed allegedly after he tried to break up a bar brawl. He
had been taken to his car, where he
was handcuffed and shot six times in the head and neck.3
Acapulco, Guerrero state: Along Mexico’s southern Pacific
coast, Guerrero has long been
home to much of the country’s poppy and marijuana fields,
as well as the point of entry for
US-bound Colombian cocaine. As elsewhere in Mexico,
competition for control over resources
and key routes has led to brutal violence. The narco-video
was allegedly filmed in Acapulco in
May 2005 by enforcers for the Sinaloa cartel who had
kidnapped, tortured, and killed rival Zetas.
Many of the victims are police officers, who “are turning up
dead in unprecedented numbers,
and their stations are being attacked by hit men wielding
fragmentation grenades.”4 On April
20, 2006, the heads of two men, one of them a police
officer, were discovered in a plaza in
downtown Acapulco along with the message “So that you
learn to respect.” The killings were
thought to be retribution for a shootout between police and
traffickers earlier in the year, in
which four suspected traffickers were killed. The
decapitated police officer had been involved in
the shootout; his body was found with its right hand cut off.
5
Ciudad Juárez and Chihuahua City, Chihuahua state: In
recent months Ciudad Juárez and
Chihuahua City have witnessed numerous drug-related
homicides, shoot-outs, and disappearances.
By mid-June 2006, 108 people had been killed in Ciudad
Juárez, many of them showing signs of
torture.6 Overcrowded prisons led to deadly riots; one
such incident claimed the lives of nine
prisoners. In Chihuahua City in early May, a state official
was shot more than 30 times by gunmen.
Later that month, two municipal police who were guarding
the home of a suspected drug trafficker
were killed by unknown gunmen in a violent shoot-out.7 A
state investigative policeman was also
implicated in the incident, and the attorney general soon
fired several police for their possible links
to traffickers. The scandal prompted calls for the army to
patrol the streets of both cities.
Culiacán, Sinaloa state: Sinaloa is one of Mexico’s principal
drug trafficking hubs. For the past
decade there have been approximately 500 violent murders
annually, most of them drug-related.8
In the first four months of 2006, Sinaloa saw 142 drug-
related homicides, with nearly half of
those occurring in Culiacán. In response to this violence
the mayor of Culiacán concluded that,
“only fools… and the dead are not afraid.”9 Like other
states plagued with drug-related violence,
Sinaloa police are constantly under attack from the cartels’
enforcers; at the same time, there are
allegations that organized crime has infiltrated law
enforcement forces. For example, in the first
months of 2006, 132 state police officers were discharged
from their duties “for loss of trust,”
according to the state attorney general.10
1 “Guerra entre narcos deja mil 537 ejecutados este año,”
El Universal, 31 December 2005.
2 Roberto Barboza Sosa y Edgar Ávila Pérez, “Ola de
violencia en cinco estados,” El Universal, 11 June 2006.
3 Richard Marosi, “Priest’s Slaying Shakes Tijuana,” The Los
Angeles Times, 27 October 2005.
4 Héctor Tobar and Carlos Martínez, “Drug Cartels Bring
Rivalry and Death to Southern Mexico,” The Los Angeles
Times,
4 November 2005.
5 Héctor Tobar, “2 More Victims in War of Drug Cartels,”
The Los Angeles Times, 21 April 2006.
6 Armando Rodríguez, “Tres muertos más en Juárez; ya van
108,” El Diario de Ciudad Juárez, 11 June 2006.
7 Javier Saucedo, “Analizan si Ejército debe hace patrullaje
en Juárez,” El Diario de Ciudad Juárez, 30 May 2006.
8 Javier Cabrera Martínez, “Cuestionan la efectividad del
México Seguro,” El Universal, 28 May 2006.
9 Javier Cabrera Martínez, “Sólo los muertos y los locos no
tienen miedo,” El Universal, 12 April 2006.
10 Javier Cabrera Martínez, “‘Limpieza’ en Policía
Ministerial de Sinaloa,” El Universal, 5 March 2006.
Some Mexican and
U.S. officials attempt to
paint a positive picture
of Mexico’s counterdrug
campaign, even
claiming that rising
violence is an indicator
of success…. But an
increase in murdered
traffickers doesn’t
translate into fewer
drugs entering the
United States.
Drug Related Violence Sweeps Across Mexico
12 State of Siege: Drug-Related Violence and Corruption in
Mexico
municipal official involved in police-community
relations told WOLA, “Those of us
who are free of any guilt feel safe in Nuevo
Laredo” and “people who are afraid are either
involved in crime or don’t know about
proper safety measures.”34 Tamaulipas Governor
Eugenio Hernández Flores sounded a
similar refrain when he said, “The people
of Tamaulipas who behave themselves
have nothing to fear” unless they “are
in some way involved with organized
crime.”35 In Tijuana, one police official’s
remarks to that effect – “The narcos are
killing each other off – that’s good. The
only problem is, it’s happening in broad
daylight”36 – was backed up by Mayor Jorge
Hank’s statement that “Any honest citizen
shouldn’t be worried.”37
There are plenty of reasons for honest
citizens to be worried. Innocent bystanders
are caught in the crossfire. The rising
violence and impunity create a heightened
sense of insecurity for all citizens – they
know that those responsible for the murders
are still at large, willing and able to strike
again. And drug-related corruption deprives
citizens of professional and effective
law enforcement and judicial institutions.
As these institutions become infiltrated by
organized crime, they cease to represent the
state but serve criminal interests instead.
No one is safe if killers are allowed to
operate with impunity, settling accounts
as they see fit, because it creates a parallel
power structure outside of the rule of law
that challenges the state’s authority. It also
creates a situation in which authorities can
easily depict homicide victims as having
been involved in the drug trade, in a bid to
wash their hands of the obligation to seriously
investigate the murders. Even more
troubling is when organized crime infiltrates
state institutions to the point that
members of police forces act as their armed
enforcers and protectors, leaving citizens
with nowhere to turn if they are victims of
crime or violence.
Drug-Related Corruption
Like violence, drug-related corruption is a
product of the black market. Doing business
entails bribing and intimidating public
officials and law enforcement and judicial
agents – on both sides of the border. Corruption
can exist without organized crime,
but organized crime cannot survive without
corruption, and it looks for opportunities to
create and deepen corruption.
The drug trade has exacerbated existing
corruption in Mexico, where institutions
are weak, lacking in transparency or oversight,
and have few effective mechanisms
for deterring, detecting, and punishing
corruption. Even after the wholesale purge
of the Nuevo Laredo police force, corruption
continues to crop up. After surviving
the June 2005 purge, another 57 agents
were forced to leave the force in early 2006.
A high-ranking municipal police official
in Nuevo Laredo explained that it is not
his agency’s job to detect and root out
corruption within its ranks – that is a job
for federal police officials. He said it was
his agency’s policy to cooperate with the
federal police in their investigations into
municipal police corruption, but that it
would be unfair to his officers to institute a
system by which citizens could anonymously
denounce police corruption.38
Perhaps the most convincing evidence
that Mexican law enforcement forces have
been infiltrated by organized crime was the
“narco-video” first reported in November
2005 by the Dallas Morning News. The
video showed four captured members of the
Zetas describing to unseen interrogators
their work as drug cartel assassins. (Mexican
officials confirmed that two of the men
were former soldiers.) The men described
what they called a “guiso” (“stew”): “The
guiso is when they grab somebody, extract
information from him or drugs or money
from him, something like that; [then] they
take away from him whatever they wanted,
whatever he carried that was an offense.
After having him tortured, he is executed
or sent to a ranch or to those places, and
there they give him the last shot and throw
him into a barrel and burn him with different
fuels, like diesel and gasoline.”39 The
captured Zetas also described their links to
Mexican law enforcement agents, implicating
high-ranking officials, and went into
detail about their methods for kidnapping,
Like violence, drugrelated
corruption
is a product of the
black market. Doing
business entails bribing
and intimidating
public officials and
law enforcement and
judicial agents – on
both sides of
the border.
Washington Office on Latin America June 2006 13
Tijuana
San Diego
Ciudad
Juarez
Acapulco
Mexico City
Nuevo Laredo
Laredo
Houston
Matamoros
Reynosa
Mazatlán
Culiacán
El Paso
Gulf of Mexico
UNITED STATES
MEXICO
GUATEMALA
BELIZE
EL SALVADOR
HONDURAS
Sinaloa Cartel
Sinaloa is a state on the west coast of Mexico
that has long been a source of marijuana and
poppy crops, as well as home to some of Mexico’s
most notorious drug traffickers, including Joaquín “El
Chapo” Guzmán. Guzmán, current leader of the Sinaloa
cartel,
escaped from a federal maximum security prison in January
2001. With
the help of Edgar “La Barbie” Valdez, who reportedly
organized a group of
enforcers known as the Negros, Guzmán is fighting against
the Gulf cartel for control of Nuevo Laredo.
According to the State Department, the Sinaloa cartel (also
known as the Guzman-Loera Organization)
“smuggles multi-ton cocaine shipments from Colombia
through Mexico to the United States. … Guzman-Loera
has bases of operation in Sinaloa, Sonora, and Chihuahua,
Mexico. The organization has distribution cells throughout
the United
States, including cells in Arizona, California, Texas,
Chicago, and New York.”1
Gulf Cartel
The Gulf cartel is based in the northeastern cities of
Reynosa and Matamoros near the Gulf of Mexico. Its leader
is Osiel Cárdenas
Guillen, who was arrested in March 2003 and continues to
direct the cartel from a federal maximum security prison. He
maintains the
loyalty of the Zetas, former special forces who deserted the
army to work for him as hit-men and security specialists.
Tijuana Cartel
The Tijuana cartel, based in northwest Mexico, is run by the
Arellano Félix clan. Although the cartel was dealt serious
blows in 2002
– enforcer Ramón Arellano Félix was killed by police, and
his brother Benjamín, considered the brains of the
organization, was captured
by soldiers – it continues to smuggle large quantities of
marijuana, methamphetamine, and cocaine from Mexico
into the United States.
Juárez Cartel
Vicente Carrillo Fuentes is head of the Juárez cartel, which,
according to the State Department, “controls one of the
primary
transportation routes for billions of dollars worth of drug
shipments entering the United States from Mexico
annually.”2 He took over the
cartel after his brother, Amado Carillo Fuentes (known as
the “Lord of the Skies”) died during plastic surgery in 1997.
1 U.S. Department of State, Narcotics Rewards Program,
Bureau for International Narcotics and Law Enforcement
Affairs,
http://www.state.gov/p/inl/narc/rewards/c13369.htm
2 Ibid.
Major Drug Cartels in Mexico
14 State of Siege: Drug-Related Violence and Corruption in
Mexico
torturing, and killing rival traffickers, as
well as for recruiting other hit-men from
police and military forces. The video ends
when a gloved hand with a gun approaches
one of the men’s heads and shoots him
point blank.
The video raised a number of questions:
Were the video’s allegations linking top
Mexican officials to the cartels true? Were
current or former soldiers or police officers
responsible for the video? Why had it been
made and sent to the media? And the most
unsettling question of all: Is there any
Mexican law enforcement agency that
can be trusted?
The Mexican government’s shifting
and contradictory response to the video
did little to resolve the questions about
its origins and authenticity or the growing
doubts about the trustworthiness of
Mexican anti-drug agencies. In the article
that first revealed the video’s existence,
Mexico’s top organized-crime fighter was
quoted as saying that the men’s statements
were coerced as part of a “counterintelligence
strategy” by one cartel to force the
government to mount a more energetic
attack against its rival.40 The day the story
broke, however, he announced that eight
agents from the elite Federal Investigations
Agency (AFI) – a police force created early
in the Fox Administration to replace the
notoriously corrupt federal judicial police
– were in custody in connection with the
kidnapping and murder evidenced in the
video, and that three more federal agents
were being sought.41 Yet the following day,
the local Mexico City authorities announced
that five of the eight AFI agents
detained in connection with the four men’s
kidnappings and murders – which had occurred
in May 2005 – had been freed three
months prior for lack of evidence.42 (The
other three federal policemen remained in
Mexico City prisons on drugs and kidnapping
charges.)
Complicating matters further, two days
later Mexico’s attorney general announced
that federal police had not been involved
at all, arguing that the video was a set-up to
tarnish the reputation of Mexican law enforcement.
43 But a day after that, his office
A number of
FBI undercover
investigations revealed
that U.S. soldiers
conspired to use the
protection afforded
by their military
uniforms and vehicles
to traffic drugs through
southwestern states.
Members of the Zetas, captured by rival traffickers, under
interrogation before being killed. This photo was taken from
the “narco-video” in which Zetas describe their work as
Gulf cartel hit-men and allege corruption in the highest
ranks of
Mexican law enforcement.
PHOTO ORIGINALLY PUBLISHED IN THE DALLAS MORNING
NEWS
Washington Office on Latin America June 2006 15
released a report confirming doubts about
the AFI’s trustworthiness; according to the
report, 1,493 AFI agents (out of a force
totaling about 7,000) were under investigation
for possible criminal activity and 457
were facing prosecution.44
Subsequent U.S. and Mexican press
reports based on Mexican court files have
concluded that AFI agents probably kidnapped
the Zetas in the resort city of Acapulco,
then handed them over to members
of the Sinaloa cartel to be interrogated and
executed.45 Some U.S. and Mexican officials
believe that current or former soldiers were
responsible for the video.46
Traffickers must also corrupt U.S. law
enforcement officials in order to move drugs
through the United States. A number of
FBI undercover investigations revealed that
U.S. soldiers conspired to use the protection
afforded by their military uniforms and
vehicles to traffic drugs through southwestern
states. One sting operation (“Tarnish
Star”) nabbed 13 current and former soldiers,
who pled guilty to conspiring to take
bribes in exchange for transporting cocaine
between Texas and Oklahoma.47 According
to prosecutors, “the defendants agreed to
wear their military uniforms during the trips
to protect the cocaine from police stops,
searches, and seizures.”48 A related operation,
“Lively Green,” involved 50 current
and former military and law enforcement
personnel in Arizona who pled guilty to
similar charges.49 FBI probes have also detected
corruption within the Border Patrol,
such as the case of a senior agent and his
brother who accepted $1.5 million in bribes
in exchange for allowing truckloads of
marijuana to pass through checkpoints near
Hebronville, Texas.50 There are undoubtedly
many other examples of corruption on
the U.S. side. Although U.S. institutions
are firmer than their Mexican counterparts,
there is certainly enough corruption to allow
illegal drugs to continue to flow.
Lessons from the Past
As terrifying as the violence is, and as
shocking as the corruption and incompetence
it reveals, the situation is not totally
unprecedented. During the mid-to-late
1990s, when the Arellano Félix cartel of
Tijuana and the Carillo Fuentes cartel
of Juárez were battling for dominance of
Mexico’s drug trade, one of their main
battlegrounds was Ciudad Juárez, and their
war produced the kinds of violence and
complicity with security forces not unlike
Nuevo Laredo today.
In Ciudad Juárez during that time hundreds
of people were murdered and at least
90 people, including 22 U.S. citizens, were
“disappeared.” In a pattern later echoed by
the Zetas in Nuevo Laredo, “the evidence
in some cases suggests that the victims
were arrested and killed by Mexican police
officers or soldiers who were hired by traffickers
to eliminate rivals or punish debtors.
In other cases, the victims appear to have
been detained for interrogation by antidrug
agents before they vanished.”51 These
abductions were frequently witnessed by
many, whether neighbors who saw uniformed
police breaking into victims’ homes
or passers-by who saw police stop traffic and
forcibly carry people off. The federal attorney
general’s office said that investigations
into 45 disappearances revealed federal
police involvement.52
Juárez cartel leader Amado Carillo
Fuentes’s death in 1997 led to a further
spike in homicides in an underworld war
of succession. Traffickers hired gunmen
to brazenly assassinate their rivals, often
catching innocent bystanders in the crossfire.
One month after Carillo’s death, for
example, gunmen armed with assault rifles
walked into a Ciudad Juárez restaurant,
killing six people and wounding three; the
press reported that five of the six killed
had no links to the drug trade. A monthlong
series of such daytime attacks claimed
at least 20 lives.53
The Mexican government responded
with an operation similar to OMS to combat
crime and violence by sending army
troops to replace corrupt federal police
and prosecutors in Ciudad Juárez. These
military personnel were soon tainted, and
corruption extended upwards to Mexico’s
drug czar, General Gutiérrez Rebollo. His
arrest revealed that what had looked like
a serious effort to dismantle the Arellano
Drug-related violence
in Mexico is rooted
in and inseparable
from U.S. policy
– on the one hand,
the U.S. government’s
prohibition of drugs
like marijuana, cocaine,
and heroin, and on
the other, its failure to
substantially shrink
U.S. demand for these
illegal substances. As
such, it is not a problem
that Mexico can solve
on its own.
16 State of Siege: Drug-Related Violence and Corruption in
Mexico
Félix cartel was really an attempt to give
power to their rivals.
One lesson that can be drawn from this
experience – and that is ringing true in
Nuevo Laredo today – is that a massive display
of force does not fundamentally impact
drug trafficking or drug-related crime or
violence in the long term. It may give the
impression of strong and decisive action,
temporarily providing a sense of security. It
may even quell violence for a time – although
there is evidence that stepped-up
police and military presence may actually
cause violence to increase, as arrests
produce vacuums that traffickers fight one
another to fill. But ultimately these shows
of force achieve little in the face of what
is a problem of supply and demand. New
traffickers crop up to replace the ones who
have been detained or killed; new police
and soldiers brought in to replace corrupt
ones are themselves corrupted or killed.
The homicide rate today in Ciudad
Juárez is not as high as it was when cartels
were battling for control. This cannot,
however, be attributed to any positive
action by the government. Rather, one
cartel gained the upper hand. The violence
that goes on today is generally within the
dominant cartel, not between competing
ones. The city remains a drug trafficking
hub where violent crimes are committed
with impunity and police institutions are
deeply corrupted. In one case from January
2004, a state police commander and several
agents allegedly participated in the murders
of eight men whose bodies were buried in
the backyard of a Juárez cartel operative;
the Chihuahua state attorney general resigned
soon after because of the scandal.54
Another lesson is that the violence
and corruption produced by the black
market allow organized crime to infiltrate
law enforcement institutions, undermine
the rule of law, and erode respect for basic
human rights. Thriving criminal organizations
must undermine law enforcement
and judicial institutions in order to avoid
accountability for their crimes, severely
compromising the government’s ability to
promote and protect human rights and the
rule of law in the process. In Ciudad Juárez,
drug trafficking has so thoroughly corroded
police and judicial institutions that they
are unwilling and unable to provide public
safety or uphold the rule of law. Crimes
against innocent victims – whether perpetrated
by common criminals or members of
organized crime networks – go unpunished
as a result. Impunity for the murders of
women in Ciudad Juárez, for example, can
largely be attributed to widespread corruption
caused by the thriving drug trade.
Conclusion
Drug-related violence in Mexico is rooted
in and inseparable from U.S. policy – on
the one hand, the U.S. government’s prohibition
of drugs like marijuana, cocaine,
and heroin, and on the other, its failure to
substantially shrink U.S. demand for these
illegal substances. As such, it is not a problem
that Mexico can solve on its own.
The prohibition of drugs fuels violence,
plain and simple. Similar violence does not
exist in markets for legal goods like cigarettes
or alcohol. Clear rules and regulations
are in place for the buying and selling
of those goods, and any disputes can be
handled by the legal system. The U.S. government,
having chosen prohibition, should
recognize that violence, as the arbiter of
the black market, is its natural byproduct.
Prohibition’s side-effects are so destructive
in Mexico because they eat away at already
corrupt institutions that have not traditionally
had the will or the ability to enforce
the law or provide public safety, causing
violence to spiral out of control.
Because the U.S. government is likely
to remain committed to drug prohibition,
it is important for U.S. policymakers to be
aware of the consequences of this policy
decision and to think much more seriously
about how to help Mexico reduce
the resulting violence, gain the upper
hand against drug traffickers, and bring the
most violent criminals to justice. As long
as drugs are illegal, there will be a certain
level of violence associated with the trade.
The question becomes how to reduce it.
Unfortunately, the U.S. government
has offered little in response to the violence
afflicting Mexico. The State Department’s
Unfortunately, the
U.S. government
has offered little
in response to the
violence afflicting
Mexico.
Washington Office on Latin America June 2006 17
International Narcotics Control Strategy
Report (INCSR), an annual document
detailing U.S. counter-drug policy, barely
mentions escalating drug-related violence in
Mexico, let alone outlines a realistic strategy
for confronting it. Its recipe for improving
Mexico’s ability to combat drug trafficking
organizations continues to call for “better
equipment, training, and investigative
tools” for police and prosecutors, as well
as “prosecutorial and judicial reform … to
match advances in the quality and ability
of law enforcement.”55 Its assessment of the
quality of the Mexican police is hard to take
seriously. Its claim that the “AFI [Federal
Investigations Agency] has developed into
the centerpiece of [the Government of
Mexico’s] efforts to promote more professional,
honest, and effective law enforcement
institutions”56 is hard to reconcile with
allegations that some AFI agents work as
enforcers for the Sinaloa cartel, or the PGR’s
own admission that one-fifth of its force was
under investigation for criminal activity.
In interviews, U.S. officials are genuinely
worried about escalating violence and
corruption in Mexico, but when asked what
can be done, many throw up their hands in
dismay and resignation. On the one hand,
they view corruption as endemic to Mexico
– they’ve seen these kinds of corruption
scandals and spikes of violence before. On
the other hand, they had high hopes that
the Fox Administration would make significant
headway against police corruption and
ineptitude – a sense that was bolstered by
arrests of major cartel leaders – but the AFI
has fallen far short of U.S. expectations that
it could be a clean, effective, and professional
police force. U.S. officials were initially
ecstatic about the impact that jailing top
traffickers would have on the drug trade, but
these hopes have proven false as well.
And so U.S. drug policy toward Mexico
continues on auto-pilot, with scant evidence
of serious thinking of what might
best help Mexico deal with the problem of
drug-related violence and corruption. U.S.
officials offer canned words of encouragement
and on occasion issue reprimands,
such as when Ambassador Garza chastised
the Mexican government for having a “tendency
to focus on public relations instead of
public security.”57 Mainly U.S. officials urge
Mexico to stay the course, even though the
police purges and federal law enforcement
and military deployments have not managed
to quell the violence, reduce the flow
of drugs, or substantially transform corrupt
law enforcement institutions.
Policymakers in the United States
need to recognize that increased crime,
violence, and corruption are the tradeoff
for relatively lower levels of drug use – and
that Mexico is paying the price for that
decision. Since the U.S. government is
intent on retaining prohibition, it has an
obligation to help Mexico and other countries
under assault from criminal violence
spawned by that policy.
To help Mexico reduce drug-related
violence and corruption, the United States
should:
Reduce U.S. demand for drugs
through wider implementation of
evidence-based prevention strategies,
improved access to high-quality treatment,
and closer supervision of drug-involved
offenders on probation or parole.
Increasingly violent competition between
Mexican drug cartels is aimed at one
goal – profiting from the U.S. drug market.
Mainly U.S. officials
urge Mexico to stay
the course, even
though the police
purges and federal
law enforcement and
military deployments
have not managed
to quell the violence,
reduce the flow of
drugs, or substantially
transform corrupt
law enforcement
institutions.
U.S. Cocaine Initiation on the Rise
Number of people under age 18 using cocaine for the first
time
1999
Year
Number of new users under
the age of 18
2000 2001 2002 2003
0
50,000
100,000
150,000
200,000
250,000
300,000
350,000
400,000
Source: U.S. Substance Abuse and Mental Health Services
Administration (SAMHSA), National Survey on Drug Use
and Health (NSDUH), 2003 and 2004 reports.
18 State of Siege: Drug-Related Violence and Corruption in
Mexico
U.S. Cocaine Dependence and Abuse Increasing
Number of people aged 12 and older dependent on or
abusing cocaine
The drug trade is lucrative because millions
of Americans use drugs.58 Significantly
shrinking the U.S. markets for cocaine and
heroin would be of tremendous benefit to
the United States as well as to Mexico and
other nations suffering the depredations of
the drug trade.
Certain school-based prevention programs
have demonstrated their value in reducing
use rates both of licit substances like
alcohol and illicit substances like marijuana
and cocaine. The quantifiable benefits of
such programs are several times greater
than the costs of program implementation.
59 But the potential of prevention programs
has been limited in practice because
only about one-third of school districts are
teaching proven, research-based curricula,60
and fewer still are implementing these curricula
with fidelity.61 Whether viewed primarily
in terms of public health, education,
or criminal justice, effective prevention
programming makes for a worthy investment.
The federal government should do
more to ensure that all school districts
– but especially those whose students appear
most at risk of substance abuse – have
the resources and expertise to implement
proven prevention programming.
Treatment’s effectiveness in reducing
drug use is supported by three decades of
scientific research and clinical practice.62
A landmark study in California found that
every dollar invested in treatment saved the
state’s taxpayers $7 in future costs, primarily
by preventing crime.63 Compared to
alternative strategies, treatment is also an
exceptionally cost-effective way to reduce
drug consumption. In 1994, the RAND Corporation
found that as a means of reducing
cocaine consumption, treatment for heavy
cocaine users is 23 times more effective than
drug crop eradication and other source-country
programs, 11 times more effective than
interdiction, and three times more effective
than mandatory minimum sentencing.64
But even the best treatment cannot
work for those who do not seek it, or for
those who cannot gain access when they
do seek it. Of the estimated 8.1 million
Americans who needed treatment for an
illicit drug use problem in 2004, only 1.4
million (17 percent) received it. On aver-
2002 2003 2004
0
200,000
400,000
600,000
800,000
1,000,000
1,200,000
1,400,000
1,600,000
Year
Number of persons dependent on cocaine
Growing Unmet Need for Treatment in the U.S.
Number of people abusing drugs who wanted
treatment but did not receive it
2002
Year
Number of drug abusers who sought
treatment but did not receive it
2003 2004
0
100,000
200,000
300,000
400,000
500,000
600,000
700,000
Source: U.S. Substance Abuse and Mental Health Services
Administration (SAMHSA), National Survey on Drug Use
and Health (NSDUH), 2003 and 2004 reports.
Source: U.S. Substance Abuse and Mental Health Services
Administration (SAMHSA), National Survey on Drug Use
and Health (NSDUH), 2003 and 2004 reports.
Washington Office on Latin America June 2006 19
age in 2003 and 2004, nearly a quarter of
a million people who sought but did not
receive treatment for alcohol or illicit drug
use problems cited prohibitive costs, insurance
limits, and other barriers to access.65
Treatment’s benefits can be accentuated
by improving rates of treatment participation
by heavy users, who generate the
lion’s share of profits for drug traffickers.
Although heavy users are a minority of
the drug-consuming population, because
they consume larger quantities of drugs at
higher frequencies and for longer periods
of time, they account for a large proportion
of the cocaine and heroin consumed
in the United States.66 A heavy user of
cocaine “uses 25 times as much of the drug
in his or her lifetime as the average person
who consumes cocaine for some period of
time but never turns to heavy use.”67 As
explained in a recent authoritative review
of U.S. drug control policy, “treatment
attacks demand directly, whereas enforcement
does so by raising prices…. Thus,
while treatment unambiguously reduces
the dollar value of the black market, enforcement
may or may not.”68
Closer supervision of drug-involved
criminal offenders on probation or parole,
with continued liberty contingent on
reducing or eliminating drug use, could
cut total cocaine and heroin consumption
even more. Since most of the cocaine sold
in America is consumed by people who
are at least nominally under the control
of the criminal justice system, efforts to
reduce cocaine demand should focus on this
group.69 For those probationers and parolees
who prove unable to abstain from drugs
under the threat of frequent drug tests and
predictable sanctions, treatment should be
offered or required. Such an effort would
require re-investing in probation and parole
systems, which have been neglected even as
budgets for building and operating prisons
have swelled, and ensuring ready access to
high-quality, community-based treatment.
An ambitious and targeted demand
reduction effort along these lines would be
of tremendous benefit to the United States
– in terms of reduced drug use and reduced
public health and criminal justice costs
– and assuming there is no shift away from
prohibition, it is the U.S. policy approach
that would be most helpful to Mexico.
The close economic integration between
Mexico and the United States underscores
this point. The United States cannot
simultaneously open its borders to legal
trade and seal them off from drugs. As long
as demand exists in the United States, traffickers
will find ways to satisfy the demand,
by sneaking through legal ports of entry or
tunneling under the border.70
Strengthen U.S. regulations governing
gun sales in order to make it
more difficult for weapons sold in the
United States to fall into the hands of
criminals in Mexico.
Easy access to handguns and assault rifles
contributes to the violence gripping Mexico.
Because most of Mexico’s illegal firearms
were originally obtained legally in the
United States and then re-sold on the black
market, closing loopholes in U.S. gun sale
regulations would have an important impact
on the availability of small arms in Mexico.
One major loophole is that background
checks do not apply to all gun sales in the
United States. An estimated four out of
every ten guns sold in the United States are
sold by unlicensed dealers with no background
checks at all.71 Although background
checks are required of individuals
purchasing guns from licensed dealers, in
most states they do not apply to sales at gun
shows or to some sales on the Internet. Furthermore,
many states (including the border
states of Arizona, New Mexico, and Texas)
do not limit sales of handguns, assault weapons,
or magazines. As a result, it is relatively
easy for people to purchase guns with the
intent of trafficking them to Mexico, or for
criminals to pay people to purchase guns
for them. Limiting these “straw purchases”
will help reduce the gun sales that supply
traffickers. Several organizations, including
Amnesty International and the Brady
Campaign to Prevent Gun Violence, have
specific policy recommendations about how
to establish and enforce stricter and more
effective regulations on gun sales.72
Tightening restrictions on gun sales in
the United States will make it more difficult
for drug traffickers to obtain weapons
In times of crisis,
seeking a quick fix is
understandable. But at
this stage – multiple
quick fixes later – it
is clear that little has
been repaired. Instead
of quick fixes or shows
of force, Mexico needs
to undertake serious
justice sector reform.
20 State of Siege: Drug-Related Violence and Corruption in
Mexico
but will not eliminate their ability to do
so, especially if there is strong demand for
these weapons in Mexico. Demand for
weapons will exist as long as drug traffickers
battle each other for control of smuggling
routes, and as long as they can get
away with murder.
Help Mexico restore public order
and provide public security for its
citizens by supporting comprehensive
police and justice reform and by aiding
Mexico’s efforts to bring the most
violent criminals to justice.
Faced with rising violence, Mexico’s
inclination has been to deploy police and
soldiers, in the hope that they will catch
criminals and their presence will have
a deterrent effect. That is certainly the
theory behind Operation Safe Mexico. But
this approach should be carefully reconsidered
in light of continued high violence in
Nuevo Laredo.
At best, this strategy diverts drug trafficking
to other areas, but as it spreads to
new regions, so do the violence, crime,
and corruption that accompany it. At
worst, aggressive drug enforcement actually
exacerbates drug-related violence for two
reasons: 1) competition for control of the
trade increases after people are displaced
from territories or structures, and 2) aggressive
enforcement tends to winnow out the
weakest criminal organizations and leave
the most ruthless, corrupting, and violent
ones standing.73 Another problem with this
approach in Mexico is that it assumes the
police and soldiers being deployed to restore
order will not succumb to the corruption
that has so decimated the local police
forces. The Zetas should serve as a cautionary
example that not even the Mexican
military – considered to be the cleanest and
most professional of the country’s security
forces – is resistant to corruption.
In times of crisis, seeking a quick fix is
understandable. But at this stage – multiple
quick fixes later – it is clear that little has
been repaired. Mexico’s law enforcement
and judicial institutions continue to be
ineffective, unprofessional, and corrupt,
making them incapable of imposing public
order, providing public safety, or bringing
criminals to justice. The drug trade is not
solely to blame for the justice system’s flaws
and failures, which are rooted in Mexico’s
authoritarian past, but it has certainly exacerbated
them.
Given the persistent failures of Mexican
law enforcement and judicial institutions,
authorities on both sides of the border find
it tempting to advocate an increased role for
the Mexican military in fighting drugs and
organized crime. The military is thought
to be more effective and less corrupt than
the police, an impression bolstered by its
capture of several of Mexico’s most wanted
drug traffickers. But involving the military
in drug control is a mistake. Despite its prestige,
the Mexican military is not immune
to corruption; its secretive nature and lack
of external oversight may actually foster
corruption while keeping it more hidden
from sight. Drug-related corruption within
the military poses a different and perhaps
greater threat than corruption within the
police, because the military is a powerful
and independent institution that is subject
to little civilian oversight. Finally, military
and police forces have distinct roles that
should not be confused. The military is
trained to use overwhelming force to defeat
an enemy and as such cannot be a substitute
for functioning civilian police and judicial
institutions. Even when the military is used
“temporarily” in police roles, this is rarely
accompanied by a long-term plan to reform
and strengthen civilian law enforcement
institutions, which is ultimately what is
needed in order to ensure public safety and
access to justice for victims of crime.
Instead of quick fixes or shows of force,
Mexico needs to undertake serious justice
sector reform. There is no substitute for
functional institutions to deliver justice.
The crisis in Nuevo Laredo highlights that
police and judicial reform is an urgent matter,
but it is also a long-term project.
Strengthening Mexico’s justice system
requires action on both sides of the border.
Mexico is ultimately responsible for reforming
its police and judicial institutions. But
because these institutions are under assault
from violent drug cartels – which are stimulated
by demand for prohibited drugs in
the United States – the U.S. government
The United States
must encourage
Mexico to implement
profound police and
prosecutorial reform.
Washington Office on Latin America June 2006 21
Washington DC
Homicides per 100,000 residents
Chicago Detroit Nuevo Laredo Tijuana
2004
2005
Acapulco*
0
10
20
30
40
50
60
B B
B
B
B B
B
B
J
J
J
J
J J
J
H
H
H
H H
H
F
F
F
F F
F F
F
1998 1999 2000 2001
Homicides per 100,000 residents
2002 2003 2004 2005
0
10
20
30
40
50
60
B Tijuana
J Acapulco
H Juárez
F Nuevo Laredo
Homicide Rates in Selected Mexican Cities
Homicide Rates in Selected U.S. and Mexican Cities, 2004–
2005
Source: Arturo Arango and Cristina Lara, Instituto
Ciudadano de Estudios sobre la Inseguridad, AC.
Compiled by WOLA from 2004 Uniform Crime Reports,
Sistema Municipal de Base de Datos (Instituto Nacional de
Estadística, Geografía e Informática), and U.S. and
Mexican press reports
* Authorities in the state of Guerrero would not provide
WOLA with homicide statistics from Acapulco for 2005,
citing them as “very sensitive.”
22 State of Siege: Drug-Related Violence and Corruption in
Mexico
shares responsibility for this task. Within
the context of continuing U.S. drug prohibition,
there are two important things
that the United States should do to help
Mexico restore public order and promote
public safety:
A. Support broad-based police and
judicial reform in Mexico by shifting
the focus of U.S. programs from providing
police training and equipment
to transforming structures, incentives,
and controls within police and judicial
institutions.
Although the U.S. government voices
support for justice reform in Mexico, U.S.
drug policy in Mexico focuses primarily on
providing the Mexican security forces with
the training and equipment necessary for
eradication, interdiction, and intelligence
sharing. There is also some emphasis on
promoting rational career paths for police
and prosecutors and improving information
sharing and coordination within
Mexico and bilaterally. These measures
are all necessary for Mexico’s law enforcement
agencies to be more effective. But
they are insufficient in the absence of more
fundamental police and judicial reform and
professionalization.
First, they will not rid Mexico’s police
forces of their historic weaknesses – especially
in an environment where the major
obstacle to effective law enforcement is
corruption. All the training in the world
will not ensure that policemen resist bribes
from drug traffickers to look the other way
or lend them a hand. Simply purging the
police forces and prosecutors’ offices is not
enough to eradicate corruption and criminality.
Second, focusing efforts on strengthening
police capacity will ultimately be
ineffective if other justice institutions
– including the courts – are not strengthened
and reformed. Otherwise, cases
against criminals will go nowhere because
drug traffickers will attempt to corrupt and
intimidate judges, rather than police and
prosecutors, as a way of avoiding accountability
for their crimes.
The United States must encourage
Mexico to implement profound police
and prosecutorial reform that puts in place
mechanisms for oversight and accountability,
in order to deter, detect, and root out corruption.
Deterrence is achieved through accountability
– making examples of those who
commit corrupt acts – and regular oversight
– increasing the chance that corruption will
be found out and letting police and prosecutors
know that they are being watched.
To date there has been little progress
on this front. Mexico touts high numbers
of police and prosecutorial personnel who
have received administrative sanctions as
a result of internal investigations,74 but it
is not clear how many resulted in criminal
sanctions against the implicated officials.
Mexico has a history of criminal investigations
that go nowhere, of police purges
that do not involve punishment. The lack
of any real individual accountability sends
the message to law enforcement officials
that they face few if any repercussions for
criminal behavior. And without reforming
the institutions themselves, any new investigators
who come into the force can just as
easily learn corrupt and criminal practices.
In addition to mechanisms to deter negative
practices, there need to be incentives to
encourage positive ones. In the words of one
U.S. official, police in Mexico need to “have
a reason to get up and go to work in the
morning,”75 to feel like they are doing something
valued and worthwhile. Who would
want to become a police officer in Nuevo
Laredo or similar cities? Currently their jobs
are high risk for no reward other than what
they can make on the side through bribes,
extortion rackets, and other criminal endeavors.
This attracts the wrong kind of people
into the profession, or quickly teaches the
wrong behavior to those who do enter the
profession to serve the public interest.
Low salaries are an invitation to corruption.
In Nuevo Laredo, municipal police
earn about $600 per month, one-fourth
of what their counterparts in the Laredo
police force make, though the cost of living
is comparable and the risks associated with
the job are infinitely greater. This is barely
enough to raise families on, and certainly
not enough of an incentive to withstand
the temptation of corruption. Although
Police in Mexico need
to “have a reason to get
up and go to work in
the morning.”
Washington Office on Latin America June 2006 23
simply raising salaries is not enough to
discourage corruption, ensuring that police
earn a dignified salary, while also ensuring
that there are mechanisms to detect and
punish corruption and criminality, is a good
start towards improving the police forces.
In the absence of real structural reform,
the Mexican government must resist
the temptation to pass new laws granting
federal police and prosecutors greater and
more flexible powers to investigate organized
crime. President Fox’s justice reform
proposal, for example, sought to deny due
process guarantees to anyone accused of
participating in organized crime (defined
broadly in Mexico as whenever three or
more people conspire to commit multiple
crimes). Under Mexico’s criminal justice
system, prosecutors are able to win convictions
based on little more than confessions,
creating incentives for extracting confessions
through torture. Coercing confessions
is much easier than actually investigating
crimes, while still allowing the authorities
to claim that crimes have been solved. Giving
police and prosecutors license to ignore
due process guarantees would not enhance
their investigative ability, but rather “remove
incentives for thorough investigation,
increasing the likelihood that the innocent
would be convicted and that some of the
most hardened criminals would be left free,
ultimately making prosecutors less effective
at combating organized crime.”76
Likewise, until police and judicial
systems at the state level are adequately
reformed, it is unwise for Mexico to give
state and municipal police
a role in investigating and
prosecuting narcomenudeo,
or local-level dealing, as
the Mexican Congress
recently voted to do. For
one, they are considered
more incompetent and corrupt
than the federal police;
giving them a role in drug
enforcement will increase
opportunities for abuse
and corruption. Furthermore,
as we’ve seen in the
United States, a dramatic
intensification of retaillevel
enforcement has succeeded in filling
U.S. prisons with drug offenders, but drugs
remain readily available.
B. Help Mexico bring the most violent
criminals to justice.
Few if any drug-related killings in Nuevo
Laredo or other cities plagued by narcoviolence
are ever solved or prosecuted,
making violence an even more attractive
way to settle disputes, intimidate critics,
or eliminate rivals. And each new wave of
unsolved killings further undermines the
public’s faith that the Mexican government
can or will punish violent offenders. This
means that officials, journalists, and ordinary
citizens have even less reason to resist
the drug cartels’ attempts to intimidate
them – they know the state will not protect
them if they make a principled stand.
Investigative shortcomings are only partially
to blame for impunity for drug-related
murders. There is a general lack of political
will to solve or punish these crimes, in part
stemming from corruption and fear. State
officials claim that a murder is a matter of
federal jurisdiction if it is somehow related
to drugs. Federal officials open investigations
that go nowhere. It is easy for the authorities
at all levels to dismiss the murders
as traffickers killing other traffickers, and
in doing so shrug off their responsibility to
investigate, prosecute, and prevent them –
they can just say the victims had it coming
and end it at that. Not even the murders of
fellow police officers are adequately investigated
by law enforcement agents.
Residents of Sinaloa state light candles at a peace rally
protesting drug-related
violence.
PHOTO BY REUTERS
Not even the murders
of fellow police
officers are adequately
investigated by law
enforcement agents.
24 State of Siege: Drug-Related Violence and Corruption in
Mexico
This report was written by Laurie Freeman, Associate for
Mexico and Security Policy at the
Washington Office on Latin America (WOLA). She would like
to thank Executive Director
Joy Olson, Senior Associate John Walsh, and Associate
Adriana Beltrán for their invaluable
comments and suggestions, as well as Communications
Director Sally Glass and Program
Assistants Kristel Muciño and Joel Fyke for editing and
production assistance. This report was
made possible by the generous support of the Public
Welfare Foundation, the Ford Foundation,
the General Service Foundation, and the Open Society
Institute.
Mexico needs to investigate the murders,
apprehend the criminals responsible for
committing and ordering them, and bring
the perpetrators to justice for these crimes.
Doing so would send the signal that these
murders will not continue to go unpunished,
and would give citizens a reason to
have faith in the government’s willingness
and ability to enforce the rule of law. Yet
doing so also presents a brutal conundrum:
Locking up major cartel leaders will in all
likelihood open doors for new traffickers to
enter the trade, inciting a violent struggle
for succession. But failing to punish them
for these crimes undermines the rule of law.
The government cannot surrender its obligation
to ensure public safety and bring major
criminals to justice for the countless killings
they have ordered and carried out.
Because Mexico has a long way to go to
create institutions that can reliably provide
justice and public safety, and because
the criminals that have been locked up
have been able to continue running their
violent enterprises from prison, Mexico
should in the meantime carefully consider
extraditing major criminals to the United
States to be prosecuted for drug trafficking
and related crimes. Indeed, because
the United States has no small measure of
responsibility for the traffickers’ criminal
actions, it shares responsibility for ensuring
they are brought to justice. Extradition
should not be seen as a panacea, or an
excuse for inaction on Mexican reform,
but as a stop-gap measure that helps the
Mexican government show it will not cede
to violent drug traffickers. The U.S. government
should not insist on extradition
without also making a commitment to help
Mexico clean and strengthen its justice
system so that it can function properly in
the future.
Bringing violent criminals to justice
will allow the Mexican government to
demonstrate that it is willing and able to
confront powerful drug traffickers. Convincing
both criminals and citizens of this
fact will enhance the government’s longterm
efforts to tackle its organized crime
problem. Criminals with inside knowledge
of organized crime networks must be encouraged
to collaborate with investigators
and will be more likely to do so if they
think they are on the losing side. And
citizens who believe their government is
working to protect them from harm will in
turn support the government and create the
political will necessary to sustain long-term
reform efforts. Half-hearted or incomplete
justice reform efforts may make matters
worse, because when these efforts fail they
will reinforce the impression that the government
is powerless in the face of organized
crime. By demonstrating its strength
– not through a show of force, but through
the rule of law – the Mexican government
will be more successful at bringing violent
criminals to justice and ensuring public
safety for its citizens.
By demonstrating its
strength – not through
a show of force, but
through the rule of
law – the Mexican
government will
be more successful
at bringing violent
criminals to justice and
ensuring public safety
for its citizens.
Washington Office on Latin America June 2006 25
Endnotes
1 Federal Bureau of Investigation, “Los Zetas: An Emerging
Threat to the United States,” Federal Bureau of
Investigation Intelligence Assessment, 15 July 2005, page 5.
2 Ibid, page 2. Also, Adam Isacson and Joy Olson, Just the
Facts: A civilian’s guide to U.S. defense and security
assistance
to Latin America and the Caribbean (1999 Edition),
Washington, DC: Latin America Working Group, 1999.
3 WOLA interview with journalist, Nuevo Laredo, Mexico, 26
April 2006.
4 Alfredo Corchado, “In Nuevo Laredo, death is a way of
life,” The Dallas Morning News, 23 May 2006.
5 WOLA interviews with journalists, Nuevo Laredo, Mexico,
25-27 April 2006.
6 WOLA interview with journalist, Nuevo Laredo, Mexico, 26
April 2006.
7 WOLA interview with U.S. official, Nuevo Laredo, Mexico,
25 April 2006.
8 WOLA interview with journalist, Nuevo Laredo, Mexico, 26
April 2006.
9 Mary Jordan, “Americans Vanish in Mexican Town,” The
Washington Post, 22 January 2005.
10 WOLA interview with priest, Nuevo Laredo, Mexico, 27
April 2006.
11 Cecilia Balli, “The Framing of Mario Medina?” Texas
Monthly, July 2004.
12 WOLA interview with journalists, Nuevo Laredo, Mexico,
26 April 2006.
13 Gustavo Monge, “Santa Muerte ‘acoge’ cadaver de
devoto,” El Universal, 27 March 2006.
14 WOLA interview with journalists, Nuevo Laredo, Mexico,
26 April 2006.
15 Frontera Norte-Sur, “The Cross-Border Narco-Drama,”
May 30, 2006.
16 Alfredo Corchado, “Nuevo Laredo paper announces
limits on coverage of drug war,” The Dallas Morning News, 9
February 2006.
17 Remarks of presidential spokesman Rubén Aguilar,
Mexico City, 13 June 2005.
18 Ivonne Melgar, “Solicita Fox a EU apoyo anticrimen,”
Reforma, 14 June 2005.
19 Remarks of presidential spokesman Rubén Aguilar,
Mexico City, 13 June 2005.
20 Remarks of presidential spokesman Rubén Aguilar,
Mexico City, 13 June 2005.
21 It is worth noting that three months before OMS began,
federal officials had sent the PFP and army troops to
Nuevo Laredo in response to a series of vicious homicides.
22 Robert MacCoun, Beau Kilmer, and Peter Reuter,
“Research on Drugs-Crime Linkages: The Next Generation,”
National Institute of Justice Special Report, July 2003, page
74.
23 Ibid, page 80.
24 Terrence Poppa, “Quién Está Manejando la Plaza?” in
Puro Border: Dispatches, Snapshots & Graffiti from La
Frontera,
ed. Luis Humberto Crosthwaite, John William Byrd, and
Bobby Byrd, Cinco Puntos Press: El Paso, Texas, 2003,
pages 93-94.
25 WOLA interview with journalist, Nuevo Laredo, Mexico,
26 April 2006.
26 Op Cit, Federal Bureau of Investigation, page 3.
27 Alfredo Corchado, “In Nuevo [Laredo], death is way of
life,” The Dallas Morning News, 23 May 2006.
28 Luis Astorga, “El Tráfico de Fármacos Ilícitos en México:
Organizaciones de traficantes, corrupción y violencia,”
paper presented at a WOLA conference on Drogas y
Democracia en México: El Impacto del Narcotráfico y de las
Políticas Antidrogas, Mexico City, 21 June 2005.
29 Tim Weiner and Ginger Thompson, “U.S. Guns Smuggled
into Mexico Aid Drug War,” The New York Times, 19
May 2001.
30 Oakland Ross, “Border no barrier to weaponry,” The
Toronto Star, 24 April 2006.
31 Lennox Samuels, “Fox Says Mexico Will Prevail In War
Against Drug Cartels,” The Dallas Morning News, 17
August 2005.
32 Notimex, “Analizarán México y Estados Unidos la
violencia fronteriza,” La Jornada, 4 June 2005
33 Department of State, Bureau for International Narcotics
and Law Enforcement Affairs, International Narcotics
Control Strategy Report (INCSR) 2005, March 2006.
34 WOLA interview with Fernando Ríos Rodríguez,
Presidente del Consejo Municipal de Participación
Ciudadana en
Seguridad Pública, Nuevo Laredo, Mexico, 27 April 2006.
35 Héctor Tobar, “In a City of Killings, Silence is Golden,”
The Los Angeles Times, 23 April 2006.
36 Richard Marosi, “Tijuana Awash in Wave of Violent
Crime,” Los Angeles Times, 22 May 2005.
37 Ibid.
38 WOLA interview with municipal police official, Nuevo
Laredo, Mexico, April 26, 2006.
39 Alfredo Corchado and Lennox Samuels, “Video offers
brutal glimpse of cartel,” The Dallas Morning News, 30
November 2005.
40 Ibid.
41 Laurence Iliff and Alfredo Corchado, “Agents held in
taped killing,” The Dallas Morning News, 2 December 2005.
42 Laurence Iliff, “Mexico freed 5 in taped killing,” The
Dallas Morning News, 2 December 2005.
43 David Aponte and Silvia Otero, “El video es un montaje:
PGR; apoya a Santiago Vasconcelos,” El Universal, 8
December 2005.
26 State of Siege: Drug-Related Violence and Corruption in
Mexico
44 Tim Gaynor and Monica Medel, “Drug gangs corrupt
Mexico’s elite ‘FBI,’” Reuters, 6 December 2005.
45 Laurence Iliff, “Glimpse into cartel hitman’s last days,”
The Dallas Morning News, 6 February 2006.
46 Alfredo Corchado and Lennox Samuels, “Video offers
brutal glimpse of cartel,” The Dallas Morning News, 30
November 2005.
47 Department of Justice, “Three More Plead Guilty as
Operation Tarnish Star Nets 13 Current, Former Soldiers of
Conspiracy to take Bribes,” press release issued 25 April
2006.
48 Ibid.
49 Department of Justice, “Three Current And Former U.S.
Soldiers Plead Guilty To Participating In Bribery And
Extortion Conspiracy,” press release issued 24 March 2006.
50 James Pinkerton, “Corruption Crosses the Border with
Agent Bribes,” The Houston Chronicle, 31 May 2005.
51 Sam Dillon, “A Toll of ‘Disappearances’ in Mexico’s War
on Drugs,” The New York Times, 7 Oct 1997.
52 Sam Dillon, “A Juárez Story of Traffickers and the
Police,” The New York Times, 29 December 1999.
53 Henry Tricks, “Mexican Drug Cartels Wage War on U.S.
Border,” Reuters, 7 August 1997.
54 Mary Jordan and Kevin Sullivan, “Mexican Police Held in
Killings,” The Washington Post, 30 January 2004.
55 Department of State, Bureau for International Narcotics
and Law Enforcement Affairs, International Narcotics
Control Strategy Report (INCSR) 2005, March 2006.
56 Ibid.
57 Statement by Ambassador Antonio O. Garza Jr. Upon
Delivery of Diplomatic Note Regarding January 23 Border
Incursion, 25 January 2006. http://mexico.usembassy.
gov/mexico/ep060125border.html
58 Consumption of cocaine and heroin has not declined
dramatically in the United States, but appears to be stable if
not rising. According to the National Survey on Drug Use
and Health, the number of current cocaine users rose
from 2.02 million (in 2002) to 2.28 million (in 2003), including
sizeable increases among teenagers (up 57,000)
and people in their twenties (up 94,000). From the U.S.
Substance Abuse and Mental Health Administration,
National Survey on Drug Use and Health, 2004.
59 Jonathan P. Caulkins et al., School-Based Drug
Prevention: What Kind of Drug Use Does It Prevent (Santa
Monica,
CA: RAND Drug Policy Research Center, 1999).
60 Christopher L. Ringwalt et al., “The prevalence of
effective substance use curricula in U.S. middle schools,”
Prevention Science, 3(4):257-265 (December 2002).
61 Denise Hallfors and D. Godette, “Will the ‘principles of
effectiveness’ improve prevention practice? Early findings
from a diffusion study,” Health Education Research, 17(4):
461-470 (August 2002).
62 United Nations Office on Drugs and Crime (UNODC),
Investing in Drug Abuse Treatment: A Discussion Paper for
Policy Makers (January 2003).
63 California Department of Alcohol and Drug Programs,
Evaluating Recovery Services: The California Drug and
Alcohol
Treatment Assessment (1994).
64 C. Peter Rydell and Susan S. Everingham, Controlling
Cocaine: Supply Versus Demand Programs (Santa Monica,
CA:
RAND Drug Policy Research Center, 1994).
65 Statistics cited in this paragraph are from Substance
Abuse and Mental Health Services Administration
(SAMHSA), National Survey on Drug Use and Health, 2004
(September 2005).
66 Jonathan P. Caulkins, Peter Reuter, Martin Y. Iguchi,
James Chiesa, How Goes the “War on Drugs”? An
Assessment
of U.S. Drug Problems and Policy, Santa Monica, California:
RAND Drug Policy Research Center, 2005, page 10.
67 Ibid, page 9.
68 Ibid, page 16.
69 Mark A. R. Kleiman, “Controlling Drug Use and Crime
with Testing, Sanctions and Treatment,” in Philip B.
Heymann and William N. Brownsberger, eds., Drug
Addiction and Drug Policy: The Struggle to Control Addiction
(Cambridge, MA: Harvard University Press, 2001). According
to Kleiman, “The relatively small number of
offenders who are frequent, high-dose users of cocaine,
heroin, and methamphetamine (no more than 3 million all
told) account for such a large proportion both of crime and
of the money spent on illicit drugs that getting a handle
on their behavior is inseparable from getting a handle on
street crime and the drug markets.” Kleiman calculates
that about 60 percent of cocaine consumed in the United
States is “sold to persons under (nominal) criminal justice
supervision” and argues that efforts to reduce cocaine
demand must therefore focus on this group.
70 “On the order of 300–400 metric tons of cocaine … enter
the United States each year. Those quantities are a tiny,
tiny fraction of the corresponding numbers for legitimate
commerce, and that is what makes interdiction so difficult
… Even with seizure rates of 25–40 percent, cocaine keeps
flowing in at prices that, while high compared to legal
drugs such as tobacco and alcohol ... are still low enough
to retain a mass market … The counterdrug experience
with interdiction is sobering: making U.S. borders
impermeable to cocaine and heroin has proven impossible.
In
a free society with substantial international trade and
tourism, ‘sealing’ the borders is not practical. Permitting the
continued smooth flow of commerce and traffic has taken
priority throughout the ‘war on drugs.’” From Jonathan P.
Caulkins et al., “Lessons of the ‘War’ on Drugs for the ‘War’
on Terror,” in Arnold M. Howitt and Robyn L. Pangi,
eds., Countering Terrorism: Dimensions of Preparedness
(Cambridge, MA: MIT Press, 2003).
71 Brady Campaign to Prevent Gun Violence, “Stop the
Flow of Illegal Guns: Make America’s Streets Safe Again,”
http://www.bradycampaign.org/action/trafficking/.
72 For specific recommendations, see Amnesty
International (http://www.amnestyusa.org/arms_trade/index.
do) and
the Brady Campaign to Prevent Gun Violence (http://www.
bradycampaign.org/action/trafficking/).
Washington Office on Latin America June 2006 27
73 Mark Moore, “Supply Reduction and Drug Law
Enforcement,” in Drugs and Crime, ed. Michael Tonry and
James Q.
Wilson, Chicago: University of Chicago Press, 1990, p. 117.
See also Robert MacCoun et.al, pages 74-75.
74 Over 1500 administrative sanctions resulted from
complaints against PGR officials from December 2000 to July
2005. Presidencia de la República, “Responsabilidades de
los servidores públicos de la Procuraduría General de la
República,” Anexo del Quinto Informe de Gobierno, page
582.
75 WOLA interview with U.S. official, Nuevo Laredo, Mexico,
25 April 2006.
76 Human Rights Watch, Lost in Transition: Bold Ambitions,
Limited Results for Human Rights Under Fox, New York,
2006.
WOLA Staff
Joy Olson
Executive Director
Geoff Thale
Director of Programs
Sally Glass
Communications Director
Gimena Sánchez-Garzoli
Senior Associate for Colombia
and Haiti
John Walsh
Senior Associate for the Andes
and Drug Policy
Adriana Beltrán
Associate for Guatemala and
Violence Against Women
Laurie Freeman
Associate for Mexico and Security
Elsa Falkenburger
Program Officer for Cuba
and Gangs
Connie McGuire
Research and Outreach
Coordinator for the Central
American Youth Gangs Project
Joel Fyke
Program Assistant for Central
America, Brazil, and Rights and
Development
Jessica Eby
Program Assistant for Drug Policy,
Security, the Andes, and Haiti
Kristel Muciño
Intern Coordinator and Program
Assistant for Mexico and Violence
Against Women
Lori Piccolo
Associate for Financial
Development
Ana Paula Duarte
Development Assistant
Jay Schwartz
Director of Operations and Finance
Rachel Neild
Senior Fellow
George Withers
Senior Fellow
Coletta Youngers
Senior Fellow
Other WOLA Publications on Drug Policy
Drugs and Democracy in Latin America:
The Impact of U.S. Policy. The ten-chapter study,
edited by Coletta Youngers and Eileen Rosin, is the
culmination
of a three-year project which incorporates the work of
over twenty researchers from the U.S. and Latin America.
The
volume provides the first comprehensive review of U.S.
drugcontrol
efforts in the region and analyzes why they have failed
to reduce the supply of cocaine and heroin entering the
United
States. The book also shows how, in country after country,
U.S. drug control policies have caused widespread and
often
profoundly damaging harm to citizens’ lives as well as to
their
nations’ democracies. Divided into country-by-country case
studies, the book documents
how drug policies have fueled
social conflict, undermined democracy, violated human
rights
and civil liberties, and altered civil-military relations in
countries
that have not completely left behind their authoritarian and
abusive pasts.
The Executive Summary of the book is available on WOLA’s
website at www.wola.org. The book can be ordered through
Lynne Rienner Publishers.
Are We There Yet?
Measuring Progress
in the U.S. War on Drugs in Latin America.
This brief examines the changes in price, purity, and
availability
of illegal drugs, as well as trends in U.S. drug consumption,
and critiques the standards by which the U.S. government
measures progress in the drug war. The data, which covers
1981 through mid-2003, is the first comprehensive analysis
of prices and purity since mid-2000, before implementation
of Plan Colombia began. This publication is also available on
WOLA’s website.
Washington Office on Latin America
1630 Connecticut Avenue, NW, Washington, D.C. 20009
WOLA
The Washington Office on Latin America (WOLA) is a
nonprofit policy, research and
advocacy organization working to advance democracy,
human rights and social justice
in Latin America and the Caribbean. Founded in 1974, WOLA
plays a leading role in
Washington policy debates about Latin America. WOLA
facilitates dialogue between
governmental and non-governmental actors, monitors the
impact of policies and
programs of governments and international organizations,
and promotes alternatives
through reporting, education, training and advocacy.
WOLA has a wide range of publications available on human
rights in Latin America
and U.S. policy. WOLA also publishes a quarterly newsletter:
“Cross Currents” in
English and “Enlace” in Spanish. See our website for a
complete list of publications and
contact our office to order.
Washington Office on Latin America
1630 Connecticut Avenue, NW, Washington, D.C. 20009
Telephone: 202.797.2171 • Facsimile: 202.797.2172
Email: wola@wola.org • Web: www.wola.org
This WOLA publication was funded by the Ford Foundation,
the Public Welfare Foundation, the
General Service Foundation, and the Open Society Institute.
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ISBN: 0-929513-69-X
A TALE OF THE RICH AND INFAMOUS
(FORTUNE Magazine)
By - Carrie Gottlieb
September 29, 1986
(FORTUNE Magazine) – Dexter D. Coffin III, 37, grew up with
servants, yachts, private boarding schools, and a U.S.
family tree that dates to the mid-1600s. That's when his
Dexter and Coffin forebears settled Cape Cod and
Nantucket Island. He is heir to more than $6 million, held in
three trusts. Their principal holding is stock of Dexter
Corp., a manufacturer of specialty chemicals that is the
nation's oldest publicly traded company; his uncle is
chairman. But Coffin's wealth has not helped him: He is
serving a 17-year term in a Virginia state prison for
prescription fraud. His first skirmish with the law came at
24, when he was convicted of stealing a yacht in Florida.
Four years later, after a bout with pancreatitis, he became
addicted to Tussionex, a potent, opiate-based cough
suppressant. He claims that treatment for subsequent
illnesses reinforced his addiction. In 1978 he was first
charged with using fraudulent prescriptions. The sentence:
five years' probation. Then Coffin attempted a comeback.
Thrice divorced, he married for a fourth time, moved to
Virginia, and invested in a computer store. Coffin's drug
habit led to the store's bankruptcy. ''I was out every single
day trying to obtain drugs to keep myself from going
through withdrawal,'' he says. He was up to 60 Tussionex
pills and 30 other painkillers a day, a dosage doctors say
could be fatal. Articulate and well groomed, Coffin got the
drugs by impersonating doctors and lawyers. Says his
attorney, Michael Morchower: ''Put him in a suit and tie and
put him in front of a doctor and he could pass for anyone.''
His impersonations landed him in a Charlottesville, Virginia,
prison. In April he escaped. He had been returning from a
psychiatric session with his wife and two armed guards
when he sneaked out of a roadside restroom and sped
away in his wife's Lincoln Continental. He says he ran
because he felt his life was in danger. He was caught trying
to buy drugs in New Hampshire. While Coffin was on the
lam, the Connecticut Bank & Trust Co., the family's . bank
for generations, cut off his trust funds. They had not been
paying much: $185,000 in 1984; $109,000 in 1985. One trust
has been the subject of a six- year court battle in which
Coffin, his mother, and his three siblings sought the
removal of the bank as trustee. ''The problem is these
bankers play God,'' Coffin says. ''They decide how much
you're going to get, and how you're going to live.'' Citing
client confidentiality, the Connecticut bank declined to
comment. Reflecting on his early life of privilege, Coffin
says, ''I had everything and more.'' With his lawyer nearby,
he is not now willing to blame his problems on his
inheritance. But in June he told a Washington Post
reporter: ''If I had not known there would always be money, I
would have done something more constructive with my
life.''
Then his Father Died:
New York Times
Monday, November 10, 2008
Paid Notice: Deaths
COFFIN, DEXTER DRAKE, JR.
Published: February 18, 2005
COFFIN--Dexter Drake, Jr. Of Palm Beach, FL, the Ocean
Reef Club in Key Largo, FL, and a summer resident of
Winter Harbor, ME, died on Monday, February 14, 2005. Mr.
Coffin was a descendant of Tristram Coffin, one of the
original settlers of Nantucket Island, MA. His family's
company, The Dexter Corporation, was the oldest company
on the New York Stock Exchange until it was acquired in
2000. Mr. Coffin was a wellknown aviator and yachtsman as
well as an automobile enthusiast, art collector, and
philanthropist. He served in the U.S. Navy as a ferry
command pilot in World War II and a member of VRF-1. Mr.
Coffin was a lifetime member of the Sailfish Club of Florida;
the Ocean Reef Club; the Winter Harbor Yacht Club; the
Watch Hill Yacht Club; Club Collette; and the Wharf Rat Club
of Nantucket. He attended Suffield Academy; Kimball Union
Academy; and St. Lawrence University in Canton, NY. His
wife, Mary, and twelve children survive him. Robert L.
Coffin Olmsted, Dexter D Coffin III, Walter J. Elliott IV,
Glenaan Elliott Robbins, Edward M. Coffin, R. Brian Elliott,
Merrilee A. Elliott, Neil Elliott, Martha Coffin, Bruce Elliott,
Laura Coffin, and Windsor Dexter Coffin; as well as his
brother, David L. Coffin of Naples, FL. In lieu of flowers,
please send any expression of sympathy to The Ocean Reef
Club Medical Center, 30 Ocean Reef Drive, Key Largo, FL
33037. Quattlebaum Funeral Home (561)832-5171 for
information.
Then the case where he turned States Evidence is
challenged :
CASES\FINAL\SCOTT.P\FSC-INIT.PWS; 06/02/97; FINAL DRAFT;
BY KIMBERLY; FOR MARTY, MARY, CHRISTINE IN THE
SUPREME COURT OF FLORIDA
CASE NO. 88,551
PAUL WILLIAM SCOTT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE FIFTEENTH JUDICIAL CIRCUIT,
IN AND FOR PALM BEACH COUNTY, STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
MARTIN J. MCCLAIN
Litigation Director
Florida Bar No. 0754773
OFFICE OF THE CAPITAL
COLLATERAL REPRESENTATIVE
1533 South Monroe Street
Tallahassee, FL 32301
(904) 487-4376
COUNSEL FOR APPELLANT
PRELIMINARY STATEMENT
This proceeding involves the appeal of the circuit court's
denial after evidentiary of Mr. Scott's motions for
postconviction relief. The motion was brought pursuant to
Fla. R. Crim. P. 3.850.
Citations in this brief shall be as follows: The record on
appeal concerning the original court proceedings shall be
referred to as "R. ____." The record on appeal from the
Rule 3.850 proceedings, excluding hearing transcripts,
shall be referred to as "PC-R. ____". The transcripts from
the Rule 3.850 proceedings shall be referred to as "PC-TR.
____". The supplemental record on appeal from the Rule
3.850 proceedings shall be referred to as "Supp. PC-R.
____). All other references will be self-explanatory or
otherwise explained herein.
REQUEST FOR ORAL ARGUMENT
Mr. Scott has been sentenced to death. The resolution of
the issues involved in this action will therefore determine
whether he lives or dies. A full opportunity to air the issues
through oral argument are more than appropriate in this
case, given the seriousness of the claims and the issues at
stake.
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT i
REQUEST FOR ORAL ARGUMENT i
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES v
STATEMENT OF THE CASE 1
SUMMARY OF ARGUMENTS 22
ARGUMENT I
MR. SCOTT'S RIGHTS TO DUE PROCESS AND EQUAL
PROTECTION WERE VIOLATED BY THE PARTICIPATION OF
ASSISTANT STATE ATTORNEY, KEN SELVIG, AS COUNSEL
FOR THE STATE BECAUSE MR. SELVIG WAS A NECESSARY
AND MATERIAL WITNESS WHO HAD A PERSONAL STAKE IN
THE OUTCOME AND ALLOWED THAT PERSONAL STAKE TO
CLOUD HIS JUDGMENT AND VIOLATE THE RULES OF
PROFESSIONAL CONDUCT TO MR. SCOTT'S PREJUDICE 24
A. MR. SELVIG AS A WITNESS 25
B. MR. SELVIG'S EX PARTE SCHEDULING OF HEARING 30
C. MR. SELVIG'S JUROR INTERVIEWS 35
D. MR. SELVIG'S ATTACK ON THIS COURT 36
E. CONCLUSION 37
ARGUMENT II
JUDGE MOUNTS ERRONEOUSLY FAILED TO DISQUALIFY
HIMSELF 37
A. BIAS AND PREJUDGMENT OF ISSUES AND WITNESSES 42
B. EX-PARTE COMMUNICATION WITH THE STATE 46
C. EXTRA-JUDICIAL INVESTIGATIONS AND CONSIDERATION
OF MATTERS OUTSIDE THE RECORD 47
D. CONCLUSION 51
ARGUMENT III
MR. SCOTT WAS DENIED DUE PROCESS, AND A FULL AND
FAIR HEARING ON HIS MOTION TO VACATE THE CIRCUIT
COURT AND THE STATE VIOLATED MR. SCOTT'S RIGHT TO
DUE PROCESS AND A FULL AND FAIR HEARING BY
DEPRIVING MR. SCOTT OF COMPETENT AND EFFECTIVE
COUNSEL WHEN THEY SET MR. SCOTT'S EVIDENTIARY
HEARING AT A TIME WHEN THEY KNEW MR. SCOTT'S
COUNSEL COULD NOT ATTEND AND HIS WITNESSES COULD
NOT BE PRESENT 52
ARGUMENT IV
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO
ENSURE MR. SCOTT'S PRESENCE DURING CRITICAL STAGES
OF HIS POSTCONVICTION HEARING, AND AS A RESULT MR.
SCOTT'S RIGHTS TO DUE PROCESS WERE VIOLATED 65
ARGUMENT V
JUDGE MOUNTS ABUSED HIS DISCRETION WHEN HE DENIED
MR. SCOTT'S REQUEST UNDER RULE 3.190(j) TO DEPOSE
DEXTER COFFIN AND ROBERT DIXON 71
ARGUMENT VI
JUDGE MOUNTS IMPROPERLY OVERRULED THIS COURT
WHEN, IN DISREGARD OF THE OPINION REMANDING FOR AN
EVIDENTIARY HEARING, HE EXCLUDED AND REFUSED TO
LET MR. SCOTT PRESENT THE EVIDENCE OF WHICH THIS
COURT HAD HELD AN EVIDENTIARY HEARING WAS
REQUIRED 77
CONCLUSION 82
TABLE OF AUTHORITIES
Page
STATEMENT OF THE CASE
On November 17, 1994, after hearing oral argument
regarding the issues raised in Mr. Scott's 3.850 motion, this
Court entered a stay of execution. On March 16, 1995, this
Court issued an opinion remanding Mr. Scott's case to the
Circuit Court for an evidentiary hearing, specifically on Mr.
Scott's claim that either the State failed to disclose or the
defense failed to discover the following: "(1) a statement by
Dexter Coffin, a cellmate of Scott's codefendant Richard
Kondian, in which Coffin states he told a police officer that
Kondian admitted killing the victim; (2) a statement by
Robert Dixon, in which Dixon states he told a police officer
that Kondian was angry with Scott for running out on him at
the murder scene; and (3) a medical examiner's photograph
that suggested that Kondian had struck the fatal blow by
hitting Alessi on the head with a champagne bottle." Scott
v. State, 657 So. 2d 1129, 1130 (Fla. 1995). This Court also
directed the Circuit Court to address public records claims
raised by Mr. Scott. Id. at 1132 n.3. Rehearing was denied
on July 20, 1995.
On remand Mr. Scott's case went to the Honorable Edward
A. Garrison, the judge who had been assigned to Division
"W" of the Circuit Court of Palm Beach County when Judge
Lupo who presided over Mr. Scott's case in 1994
transferred to the General Trial Division. However, on
August 29, 1995, Judge Garrison entered an Order of
Recusal (PC-R2. 1084), and Mr. Scott's case was reassigned
to Division "T" (PC-R2. 1084).
On September 13, 1995, Mr. Scott filed a Motion to Transfer
Case To Original Post-Conviction Judge, stating that
judicial economy would be best effected were Mr. Scott's
case transferred back to Judge Mary Lupo, the circuit
judge who had heard Mr. Scott's motion for postconviction
relief in November of 1994 (1088-1090). On September 22,
1995, Judge Carlisle of Division "U" denied Mr. Scott's
motion to transfer (PC-R2. 1091-1092). Copies of this order,
which clearly indicated that Mr. Scott's case had been
reassigned to Division "T," were sent to Celia Terenzio of
the Attorney General's Office and to Ken Selvig of the West
Palm Beach State Attorney's Office (PC-R2. 1092).
On October 2, 1995, the Honorable Roger B. Colton, circuit
judge of Division "T," entered an Order of Recusal (PC-R2.
1093), and on October 5, 1996, Mr. Scott's case was
reassigned to the Honorable Marvin U. Mounts in Division
"S" (PC-R2. 1093). As before, copies of this order were sent
to Celia Terenzio and Ken Selvig, and the order recognized
Martin J. McClain as sole counsel for Mr. Scott (PC-R2.
1093).
On October 10, 1995, State Attorney Ken Selvig filed a
Notice of Intent to Interview Jurors, indicating that the
purpose of said interviews was to "reconstruct the record
to determine the count by which the jury voted to
recommend the death penalty." (PC-R2. 1094). Copies of
this notice were sent to the judge for Division "W" (long
since recused) and to Judith Dougherty (an attorney no
longer employed by the Office of the Capital Collateral
Representative) (PC-R2. 1094). The notice was sent by
regular mail and did not reach the Office of the Capital
Collateral Representative until October 13, 1995. Affidavits
filed with the circuit court by the state months later would
reveal that the state had conducted at least one of these
jury interviews on October 10, 1995, the day the notice was
signed by Mr. Selvig which was three days prior to the time
Mr. Scott was served with the notice (PC-R2. 1335-1336).
On October 17, 1995, undersigned counsel filed an
Objection To Interview Of Jurors By The State in Division
"S" based on the state's failure to allege or state any
reason for its belief that the verdict was subject to legal
challenge pursuant to the mandate of Rule 4-3.5 of the
Florida Rules of Professional Conduct (PC-R2. 1095-1096).
Mr. Scott requested that, pursuant to Rule 4-3.5, the state
refrain from interviewing jurors until it had provided
appropriate grounds for doing so and until a hearing had
been held (PC-R2. 1096).
On November 1, 1995, The Honorable Marvin Mounts
issued an order requesting that both Mr. Scott and the
State submit a "chronology of the essential events since
the conviction and to recommend matters that need to be
considered at the next hearing." (PC-R2. 1103-1104). Judge
Mounts also asked both parties to respond as to "why an
original file was microfilmed and apparently discarded
when it was still active and to how it should be maintained
now, including the several notes that have been stuck or
attached to pleadings recently." (PC-R2. 1103). The order
ended with the following statement: "This document
concludes with the complex rhetorical question: Does the
State as the advocate or clerk as record keeper and
caseload equalizer have any interest anent the recusal
incidence in this case?" (PC-R2. 1103). This order
recognized Martin J. McClain as sole counsel for Mr. Scott
(PC-R2. 1104)
On November 14, 1995, the State filed a Response To Order
Of November 1, 1995 (PC-R2. 1105-1109). This response
stated the evidentiary hearing, which the State requested
take place prior to December 15, 1995, should address the
question of whether the state violated Brady v. Maryland,
373 U.S. 83 (1963) by failing to disclose statements of
Dexter Coffin and Robert Dixon and by failing to disclose
the existence of a crime scene photograph of a circle of
blood to the defense (PC-R2. 1107-1108). The State's
response also maintained that the issue of the jury vote to
recommend death would be a relevant issue at the hearing
(PC-R2. 1108). This response recognized Martin J. McClain
as sole counsel for Mr. Scott (PC-R2. 1109).
Also on November 14, 1995, undersigned counsel, Martin J.
McClain, filed a response to the November 1, 1995 order
(PC-R2. 1110-1131). Undersigned counsel attached a copy
of this Court's July 20, 1995 opinion to his response, and
indicated that in addition to those questions related to
Brady v. Maryland, this Court had ordered that any public
records claims raised by Mr. Scott should be addressed
(PC-R2. 1110). Mr. Scott also requested that he be allowed
to conduct an investigation of any inappropriate
manipulation of the case assignment process which may
have occurred prior to any further activity in Mr. Scott's
case (PC-R2. 1111). Additionally, undersigned counsel
notified Judge Mounts that he had been ordered by this
Court to give top priority to Jerry White, a client scheduled
for execution on December 1, 1995, and that he was
therefore requesting additional time to conduct this
investigation and to update his response (PC-R2. 1111).
On November 17, 1995, undersigned counsel learned
through Robert Hesse, Judge Mounts' judicial assistant,
that pursuant to the state's request, an evidentiary hearing
would be scheduled for December 14, 1995. On November
17, 1995, undersigned counsel, Martin J. McClain, sent a
letter to Judge Mounts, copied to the state, which outlined
the reasons for his inability to prepare for a hearing on
December 14, 1995. Specifically, Mr. McClain informed
Judge Mounts that he was currently litigating Jerry White's
case under warrant, and that he had been directed to turn
his full attention toward the representation of Mr. White by
this Court. The letter also informed Judge Mounts that the
state had ignored issues which needed to resolved in its
November 14, 1995 response, and that it had
underestimated the length of time needed for the
evidentiary hearing. After Judge Mounts had received the
letter, Robert Hesse informed Mary K. Anderson Mills that
the December 14, 1995 hearing would be continued only if
the State were to agree.
Accordingly, undersigned counsel, through Mary K.
Anderson Mills, contacted Ken Selvig and requested that
he agree to a continuance of the hearing. Mr. Selvig
agreed to the continuance, but only if the hearing were to
be rescheduled in January. Mary K. Anderson Mills again
contacted Mr. Hesse regarding the state's position, but was
informed that there would be no need to file a motion for
continuance, as the hearing had never been set. A notice
of agreed order was filed and the evidentiary hearing was
thereafter set by the court for January 23, 1996 (PC-R2.
1132-1134).
On December 18, 1995, Mr. Scott mailed for filing an
Amended Response To Order Of November 1, 1995, And To
The State's Response Dated November 13, 1995. This
motion repeated Mr. Scott's request that an investigation
be conducted or that a hearing be conducted regarding the
condition and destruction of the files in Mr. Scott's case
(PC-R2. 1142-1146). On December 19, 1995, Mr. Scott filed a
Motion to Disqualify State Attorney Ken Selvig from further
representation of the State pursuant to Rule 4-3.7 of the
Florida Rules of Professional Conduct and the "witness-
advocate" rule. State v. Christopher, 623 So. 2d 1228, 1229
(1993)(PC-R2. 1138-1141). Mr. Scott also filed a Motion to
Permit Discovery pursuant to Lewis v. State, 656 So. 2d
1248 (Fla. 1995), requesting that he be allowed to take Mr.
Selvig's deposition (PC-R2. 1135-1137). On December 22,
1995, the State filed a Response which opposed Mr. Scott's
Motion to Disqualify Ken Selvig and to Permit Discovery on
the grounds that it was legally insufficient (PC-R2. 1147-
1151). The State described Mr. Scott's motion as "a futile
attempt to delay justice and deprive the state of
representation by the most qualified person to handle this
case." (PC-R2. 1150). The State noted that "Mr. Selvig has
been the lead prosecutor in this case for the past
seventeen years. Scott's veiled attempts to disrupt that
continuity must fail." (PC-R2. 1150).
On December 27, 1995, a hearing was held regarding Mr.
Scott's motions to disqualify Ken Selvig and to permit
discovery and the state's response to those motions (PC-
TR. 1-44). Also heard was argument regarding the state's
notice of intent to interview jurors. During the hearing, Mr.
Selvig informed Judge Mounts that his sole purpose for
conducting these interviews was to dispute the factual
finding by this Court that the jury vote for death was seven
to five (PC-TR. 30). Assistant State Attorney Selvig admitted
that he had already interviewed "a number of jurors." (PC-
TR. 31). Mr. Selvig concealed from the Court and opposing
counsel the fact that they had conducted at least one of
these interviews on October 10, 1995, the day they had filed
the notice and three days before undersigned counsel
received it. Judge Mounts thereafter made the following
statements regarding the jury interviews:
...it's always been my practice, at least in old Division S
whenever the need in other cases has arisen to interview
any jurors, I have, oh, I think consistently denied the
opportunity of the defense or the State to do it in camera
and required that it be done in open court and on the
record.
And when I saw your notice to interview jurors I assumed
apparently wrongly, incorrectly rather that we would, if it
ever got to the stage were they were to be interviewed and
after hearing from the defense interview them in due
process venue with a Court and court reporter and clerk...
(PC-TR. 31-32).
On January 5, 1996, the Court signed an order that the state
had proposed on December 28, 1996, which denied Mr.
Scott's Motion to Disqualify Ken Selvig and Motion to
Permit Discovery (PC-R2. 1152-A). Mr. Scott subsequently
filed a petition for writ of prohibition from this ruling to this
Court. The writ was subsequently denied by this Court on
January 22, 1996 (PC-R2. 1248).
In preparing for the January 23, 1996 hearing, it came to the
attention of undersigned counsel that two of Mr. Scott's
material witnesses, Dexter Coffin and Robert Dixon, were
outside the jurisdiction of this Court and would be
unavailable for the January 23, 1996 hearing, as Mr. Dixon
was on parole in the State of California and Mr. Coffin was
incarcerated in the State of Virginia. On January 10, 1996,
immediately upon making this determination, a motion to
take the depositions of Dexter Coffin and Robert Dixon in
order to perpetuate their testimony was filed. This was
pursuant to Rule 3.190(j), Fla. R. Crim. P. (PC-R2. 1161-1163).
On January 11, 1996, undersigned counsel was informed by
Judge Mounts' judicial assistant that Judge Mounts had no
time to hear the motion in advance of January 23, 1996.
Accordingly, a motion to continue was filed because of
Judge Mounts' inability to find time to hear the pending
motion. Judge Mounts then found time to hear the motions
on January 18, 1996.
At the hearing on Mr. Scott's motion for continuance and
motion to take depositions, the State opposed these
motions, claiming that Dexter Coffin and Robert Dixon did
not have relevant testimony to give. Specifically,
THE COURT: You say that is a condition precedent?
MR. SELVIG: Absolutely.
According to Mr. Selvig, undersigned counsel could not
present the testimony of either Coffin or Dixon unless he
proved without resorting to their testimony that Mr. Selvig
had failed to disclose their pretrial statements to Mr Scott's
trial counsel (PC-TR. 55). Thereupon, Judge Mounts denied
Mr. Scott's motion to take depositions to perpetuate
testimony (PC-TR. 63). The Court also denied Mr. Scott's
motion for continuance (PC-TR. 63). Judge Mounts left Mr.
Scott with two working days prior to the evidentiary
hearing, making it impossible for undersigned counsel to
obtain the testimony of Dexter Coffin or Robert Dixon, who
were both beyond the territorial jurisdiction of the circuit
court.
During the January 18, 1996 hearing, Ken Selvig made the
following admission regarding statements made by Dexter
Coffin, which were the substance of the Brady claim in Mr.
Scott's case:
The substance of the statement was never disclosed
because we in the prosecutor's office at that point in time
gave no credence to Mr. Coffin's statements, had he made
one."
(PC-TR. 57).
Also during the January 18, 1996 hearing, Judge Mounts
informed Mary Anderson, whom undersigned counsel had
assigned as second chair to cover the hearing, that he,
Judge Mounts, was well-acquainted with defense witness
Dexter Coffin, and specifically directed Mr. Scott's counsel
to investigate this matter (PC-TR. 47-48). Based on Judge
Mounts' directive, undersigned counsel attempted to
conduct an investigation into the matter of Judge Mounts'
familiarity with Dexter Coffin in the two business days
remaining prior to the January 23, 1996 hearing.
Through investigation, it became immediately apparent to
undersigned counsel that Judge Mounts had been directly
involved with Dexter Coffin and officials such as Captain
Jack Donnelly at the Palm Beach County Jail during the very
time period that Richard Kondian made the statements to
Dexter Coffin which are the subject of Mr. Scott's
evidentiary hearing. An inspection of Mr. Coffin's criminal
files indicated that he had been sentenced by and indeed
corresponded with, Judge Mounts during this time period.
However, further investigation was impossible due to the
fact that Mr. Coffin's criminal files had been destroyed with
the exception of the index forms. Therefore, the only
individual who could have provided information regarding
this matter was Judge Mounts himself.
Because of this newly discovered information, which
created a fear in Mr. Scott's mind that he would not receive
a full and fair hearing from Judge Mounts, undersigned
counsel filed motions to disqualify Judge Mounts, and an
accompanying motion to depose Judge Mounts regarding
his involvement with Dexter Coffin (PC-R2. 1174-1197; 1198-
1209; 1244-1247). On January 23, 1996, argument was heard
on these motions, and on an amended motion to disqualify
Judge Mounts which contained updated information
undersigned counsel had been able to obtain after the
motion to disqualify had been filed. (PC-TR. 70-106).
Undersigned counsel, Martin J. McClain, appeared at this
hearing as lead counsel, and conducted all aspects of the
hearing and case. At that time, undersigned counsel set
forth in detail the information he had obtained regarding
Judge Mounts' involvement with Dexter Coffin, including
additional information he had received regarding a Roger
Beach, an individual who had threatened Judge Mounts
and whom Dexter Coffin informed against (PC-TR. 99).
Undersigned counsel also informed Judge Mounts that
Attorney David Roth had given him new information
relevant to the disqualification motion earlier that morning
(PC-TR. 75-76). Undersigned counsel sought an opportunity
to reduce the new information to writing. Judge Mounts
refuse to disqualify himself and refused to grant
undersigned counsel the continuance he requested to
conduct a further investigation into the matter. Judge
Mounts refused to allow even a brief recess as specifically
mandated in Rogers v. State, 630 So. 2d 513 (Fla. 1993),
despite undersigned counsel's specific reference to
Rogers (PC-TR. 75, 106).
The evidentiary hearing was thereafter commenced. Judge
Mounts had denied Mr. Scott's previously filed Motion to
Disqualify Ken Selvig and to take his deposition, based on
his role as a witness in Mr. Scott's case. In the same vein,
Judge Mounts refused to follow the rule regarding
sequestration of witnesses and refused to exclude Ken
Selvig from the Courtroom during the testimony of other
witnesses (PC-TR. 127-128). Thus, undersigned counsel was
forced to call Ken Selvig as his first witness (PC-TR. 136).
During the course of the hearing, Judge Mounts excluded
all evidence which the State claimed was either not
admissible or "beyond the scope" of the evidentiary
hearing (PC-TR. 165, 167, 203, 262, 264, 266, 268, 269, 270,
271, 272, 273).
At 6:00 p.m., at the end of the day on January 23, 1996,
Judge Mounts recognized that additional time needed to
be allotted for the hearing (PC-TR. 275). Undersigned
counsel was still in the midst of direct examination of Mr.
Selvig. At that time, in response to Judge Mounts' inquiries,
undersigned counsel stated that he intended to call five
witnesses in addition to Ken Selvig, whom he was not
finished questioning (PC-TR. 275-276). Undersigned
counsel specifically mentioned that it was his intention to
attempt to obtain the presence of Robert Dixon and Dexter
Coffin for the hearing (PC-TR. 275-276). Additionally,
undersigned counsel informed this Court, in the presence
of the State, that he was aware of several dates in the
future on which he would be unable to attend hearing in
Mr. Scott's case due to previously scheduled hearings in
other cases. Specifically, undersigned counsel cited
February 15, 1996 as one of the dates he could not attend a
hearing in Mr. Scott's case (PC-TR. 281). Mr. McClain had
received notice dated December 20, 1995, of a hearing on
February 16, 1996, at 9:00 a.m. in Salisbury, Maryland, in the
case of Rickey Roberts, and to reach Salisbury, Maryland,
by February 16th at 9:00 a.m., Mr. McClain was scheduled to
leave on February 15th. After Mr. McClain indicated he had
a commitment on February 15th, Judge Mounts requested
that the State "undertake to obtain the two days" to
complete the hearing. The record makes clear that
undersigned counsel was to be contacted and included in
deciding when the hearing would be scheduled (PC-TR.
281).
On January 25, 1996, the Governor of Florida signed a
warrant setting Rickey Roberts' execution for February 25,
1996. On January 26, 1996, CCR received a notice of
hearing from Ken Selvig, notifying undersigned counsel
that a hearing had been set for February 14 and 15, 1996
(Supp. PC-R2. 15). The service on the notice indicated that
this hearing was set on January 24, 1996 (Supp. PC-R2. 15).
Neither undersigned counsel nor anyone in his office was
contacted regarding the selection of this hearing date. The
hearing date was selected on an ex parte setting of
resumption of the evidentiary hearing on the very day
counsel indicated he was not available.
Undersigned counsel had been the lead counsel on Mr.
Scott's case since 1991, a fact well-documented by the
record. See Scott v. State, 657 So. 2d at 1129. In an effort to
diligently apprise Judge Mounts and the State of his
inability to attend the February 14 and 15, 1996 hearing,
undersigned counsel filed a Motion for Continuance or in
the Alternative to Allow CCR to Withdraw on January 31,
1996 (PC-R2. 1256-1260). In this motion he informed the
Court that he not only had a previously scheduled hearing
which would prevent him from attending the currently
scheduled evidentiary hearing set in Mr. Scott's case, but
that a warrant had been signed in Rickey Robert's case, the
very case with a hearing set for February 16th in Salisbury,
Maryland (PC-R2. 1256-1257). In fact, due to the warrant, the
February 16th proceedings were going to be longer and of
more significance requiring Mr. McClain to travel to
Maryland on February 14th in order to interview witnesses
and be prepared to present evidence on February 16th if
the Maryland courts granted Mr. McClain's request to do
just that. Accordingly, undersigned counsel requested that
Judge Mounts reschedule Mr. Scott's evidentiary hearing
to a date subsequent to the Roberts' warrant period (PC-R2.
1259). Included with this motion was a request for hearing.
A copy of this motion was faxed to Judge Mounts on
January 31, 1996. However, undersigned counsel heard
nothing from Judge Mounts regarding the hearing he had
requested until the second week in February. Meanwhile,
Mr. McClain had scheduled to travel to California on
February 9th to take the deposition of Robert Dixon on
February 10th. On February 5, 1996, undersigned counsel
was informed that Judge Mounts would take up the motion
for continuance on February 9, 1996 at 4:00 p.m.
Accordingly, Mr. McClain arranged to have Ms. Anderson
cover the deposition armed with a cellular phone and a list
of all questions to be asked. However, undersigned
counsel was later informed on February 6th by Judge
Mounts' Judicial Assistant, Robert Hesse, that because of a
personal matter Judge Mounts would not hear the motion
until February 12, 1996 at 11:00 p.m., two days prior to the
February 14, 1996, hearing date. Robert Hesse specifically
averred that Judge Mounts had no prior time available to
hear this motion for continuance (See Letter to Judge
Marvin U. Mounts, Jr., dated February 6, 1996).
After receiving Mr. Scott's motion for continuance, Celia
Terenzio telephoned the Office of the Capital Collateral
Representative and spoke to Mary Anderson Mills. During
that conversation, Ms. Mills informed Ms. Terenzio that Mr.
McClain had mistakenly referred to the Raleigh Porter
hearing as the hearing set on February 15, 1996, and that it
had in fact been the Rickey Roberts hearing in Maryland to
which Mr. McClain had intended to refer.
A telephonic hearing regarding undersigned counsel's
request for continuance or permission to withdraw and the
Third Amended Motion To Disqualify Judge Mounts (based
on Judge Mounts' actions in setting the hearing ex parte)
was held on February 12, 1996 (PC-TR. 285-323). The State
opposed both motions (PC-TR. 293, 305-307, 310-311).
Relying on the transcript of the January 23, 1996,
evidentiary hearing, the State argued that "there was never
any indication in the record that counsel for Mr. Scott
should be asked what was convenient for him." (PC-TR. 290-
291). Furthermore, the state maintained that Mary Anderson
Mills should be required to represent Mr. Scott in Mr.
McClain's absence (PC-TR. 306-307).
The State read only portions of the transcript into the
record (PC-TR. 398-401). Although undersigned counsel had
requested a copy of the January 23, 1996, transcript in
writing subsequent to the hearing, he was not provided
with a copy until after the hearing on February 14, 1996 (PC-
TR. 312, 398-401). The State, however, who conceded at the
February 14, 1996, hearing that they had not been required
to make a written request for the transcript, was given a
copy of the January 23, 1996, hearing transcript prior to the
February 12, 1996, hearing (PC-TR. 401, 290-291).
At the hearing, undersigned counsel set forth in detail the
reasons for his inability to attend the February 14 and 15
hearing. Undersigned counsel informed Judge Mounts, as
he had informed Judge Mounts and the State on January
23, 1996, that he would not be available to conduct an
evidentiary hearing on those dates due to his commitment
in another case (PC-TR. 299-301). Undersigned counsel
further explained to Judge Mounts that although the
hearing set in Maryland was a pre-evidentiary hearing to
the main evidentiary hearing set on March 22, 1996,
because of the pending warrant Mr. McClain was seeking
to convert the February 16th hearing into an evidentiary
hearing and had to be prepared to present all of the
necessary evidence. Because an execution warrant had
been signed for Rickey Roberts by the Governor, at the
Attorney General's urging, for February 23, 1996,
undersigned counsel had been compelled to take
measures to expedite the Maryland evidentiary hearing (PC-
TR. 300). Undersigned counsel explained that as lead
attorney on Mr. Roberts' case, his presence in Maryland
during the time scheduled for the Scott evidentiary hearing
had become essential as the case was very complex and
involved the presentation of testimony by numerous
witnesses (PC-TR. 300). Undersigned counsel advised
Judge Mounts that the Attorney General had argued to the
Florida Supreme Court that a warrant case must take top
priority and that any other case was merely a "cat in a tree."
(PC-TR. 301). In accordance with this position, undersigned
counsel informed Judge Mounts that the Florida Supreme
Court had recently continued an oral argument set in
Terrell Johnson because of undersigned counsel's role as
lead attorney in Rickey Roberts' case (PC-TR. 304). And in
fact, the federal court hearing in the Raleigh Porter case
continued the February 22nd evidentiary hearing because
of the Roberts' warrant. Judge Mounts thereafter denied
the motion for continuance or to withdraw (PC-TR. 311).
Also taken up at the February 12, 1996, hearing was the
State's Motion to Preclude Testimony of Witnesses and Mr.
Scott's response to that motion (PC-TR. 311-318). Ken
Selvig represented the State at this hearing, urging the
court to preclude the testimony of all defense witnesses
who would provide testimony regarding the "materiality"
prong of Brady v. Maryland, 373 U.S. 83 (1963), as Ken
Selvig propounded that the record rebutted Mr. Scott's
Brady claims (PC-TR. 315). Specifically named as witnesses
whose testimony should be excluded were Dr. Cuevas and
Dale Nute (PC-TR. 313). Mr. Scott opposed this motion,
noting the impropriety of Judge Mounts basing his
determination of the issues in Mr. Scott's case solely upon
the testimony of Ken Selvig, whose bias toward these
issues was clear (PC-TR. 314-316). Judge Mounts thereafter
granted the State's motion to preclude defense witness
testimony in its entirety (PC-TR. 318).
On February 14, 1996, Judge Mounts reconvened the
evidentiary hearing in Mr. Scott's case (PC-TR. 324-402).
Undersigned counsel Martin J. McClain was unable to
attend the hearing, due to his litigation of the Roberts case
in Maryland. However, because of Judge Mounts' refusal to
continue the hearing, Mr. McClain felt compelled to send
Mary K. Anderson Mills to appear on behalf of Mr. Scott.
At the beginning of the hearing, it was discovered that Mr.
Scott had not been transported to West Palm Beach from
Union Correctional Institution (PC-TR. 326). Ms. Anderson
Mills objected to Mr. Scott not being present and asserted
that he was not waiving his rights in this regard (PC-TR.
331). Ms. Anderson Mills also made Judge Mounts and
opposing counsel aware that, due to Judge Mounts' failure
to transport Mr. Scott to the hearing, counsel had not been
able to speak with him about the issues at hand (PC-TR.
334).
Although Judge Mounts expressed some initial concern
with Mr. Scott's absence, and in fact delayed the hearing
for an hour to allow counsel to research this issue, Judge
Mounts ordered that the hearing proceed in Mr. Scott's
absence, upon the state's assurances that his presence
was not required and that they knew that the issue would
be reviewed by an appellate court (PC-TR. 330). Thereafter,
the hearing went forward in the absence of Mr. Scott and
Mr. McClain. Ms. Anderson Mills was not prepared to
present any evidence without either Mr. Scott or Mr.
McClain present. The State's evidence consisted solely of
the testimony of Ken Selvig (PC-TR. 357-365).
At the conclusion of the State's case and after the evidence
was closed, Judge Mounts entertained argument by Ken
Selvig that Mr. Scott's 3.850 motion should be denied based
on his testimony and the record (PC-TR. 371-388). Ken
Selvig referred Judge Mounts to a memorandum he had
served on undersigned counsel minutes prior to the
hearing, which he claimed supported his position (PC-TR.
371). Judge Mounts ignored Ms. Anderson Mills' assertion
that she was not waiving notice to the afore-mentioned
memo and subsequent request for additional time to
prepare a response to Ken Selvig's memorandum (PC-TR.
394). Subsequently, Judge Mounts requested that Ken
Selvig provide him with the materials from the record that
the State deemed appropriate for him to review in making
his determination (PC-TR. 393). Judge Mounts requested
that the State submit a written finding of fact for his review
(PC-TR. 393). No such requests were made of Mr. Scott's
counsel.
On February 20, 1996, Mr. Scott filed a Fifth Motion to
Disqualify Judge Mounts, citing as grounds Judge Mounts'
actions at the February 14, 1996, hearing (PC-R2. 1352-
1371). On March 2, 1996, Robert Hesse, Judicial Assistant to
Judge Mounts, contacted Mary Anderson Mills and asked
whether undersigned counsel intended to submit
proposed findings of fact. As Judge Mounts had given no
previous indication that he wished Mr. Scott to submit such
proposed findings, undersigned counsel submitted a
motion for clarification requesting an order from Judge
Mounts regarding this matter (PC-R2. 1378-79). Judge
Mounts never ruled on this motion.
On March 11, 1996, undersigned counsel filed a Motion For
Reconsideration Of Denial Of Mr. Scott's Motion For
Continuance And Response To State's Letter Regarding
Materials To Be Reviewed By The Court (PC-R2. 1380-1422).
Mr. Scott requested that Judge Mounts strike the February
14, 1996, proceedings from the record and reopen the
evidence to allow Mr. Scott to fully present his claims.
Attached to this motion was a copy of the deposition of
Robert Dixon, which had been taken on February 10, 1996, a
transcript of which had not previously been available (PC-
R2. 1487-1508).
On March 26, 1996, the State filed a Response to
Defendant's Motion For Reconsideration And Amended
Motion For Reconsideration (PC-R2. 1512-1538). That
motion addressed what it referred to as "Scott's repeated
misrepresentations to this Court regarding the true nature
of the February 16th hearing in the case of Rickey
Roberts." Mr. Scott filed a reply to the state's motion on
April 2, 1996 (PC-R2. 1539-1833).
On April 5, 1996, undersigned counsel received a letter,
written by Judge Mounts' Judicial Assistant, Robert Hesse,
on April 4, 1996. The letter began as follows:
You have invited me to review and respond, at my option,
to the several references to statements attributed to me in
the course of this case.
(PC-R2. 1834). The letter did not address any specific
allegations, as Mr. Hesse stated it was not proper for him to
agree or disagree with anything claimed by the attorneys.
After receiving the aforementioned letter, Mr. Scott filed a
Sixth Motion to Disqualify Judge Mounts, based on the
Judge Mounts' extra-judicial investigation into issues
involving Mr. Scott's case. Mr. Scott also filed a Motion to
Permit Discovery requesting that undersigned counsel be
allowed to depose Judge Mounts and Robert Hesse
regarding the extent of this investigation.
On April 23, 1996, Judge Mounts issued an order, which
stated the following regarding the Brady issues in Mr.
Scott's case:
It is clear and without doubt that the defense had notice of
all three. The State's Memorandum of February 14th is
correct and incorporated herein. There is no evidence, by
affidavit or otherwise, that Dixon or Coffin ever made a
written or recorded statement during the time frame prior
to the trial.
This record demonstrates that there is no concealment, no
failure to disclose.
(PC-R2. 1851).
On April 29, 1996, the state submitted a proposed order
which vacated the Court's April 23, 1996 order, denied all
pending defense motions, and then reinstated the April 23,
1996, order (PC-R2. 1932-1933). Mr. Scott was not served
with a copy of this motion until May 2, 1996.
On April 30, 1996, Judge Mounts filed a Notice and Order
forbidding all parties from contacting Janet S. O'Keefe, a
juror in Mr. Scott's case, without prior leave of court (PC-
R2. 1931). The order stated that Judge Mounts had
discussed Mr. Scott's case with Timothy Sullivan, the Bailiff
of Division "S," on April 19, 1996, and that Mr. Sullivan had
informed him that a representative of CCR had approached
Ms. O'Keefe in 1994 without notice. Mr. Scott filed a
Seventh Motion To Disqualify Judge Mounts and an
accompanying motion for discovery based on these actions
(PC-R2. 1958-1971).
On May 10, 1996, Mr. Scott filed a timely Motion for
Rehearing from the April 23, 1996, order (PC-R2. 1934-1954).
On May 13, 1996, Mr. Scott received a copy of the proposed
order submitted by the state on April 29, 1996. Judge
Mounts had signed the State's proposed order on May 1,
1996, a day before undersigned counsel became aware that
the proposed order had been submitted (PC-R2. 1932-1933).
On May 20, 1996, Mr. Scott filed a Notice of Filing Motion
For Rehearing, informing the court that because the April
23, 1996, order had been vacated, he intended to file a
subsequent motion for rehearing within 15 days of the
receipt of the May 1, 1996, order which was May 13th (PC-
R2. 1955-1957).
On May 24, 1996, Mr. Scott filed a timely motion for
rehearing from the May 1, 1996 order (PC-R2. 1975-2002).
On June 19, 1996, Judge Mounts denied Mr. Scott's motion
for rehearing (PC-R2. 2003). Mr. Scott filed a timely notice of
appeal from this order on July 16, 1996. This appeal follows
(PC-R2. 2004-2014).
SUMMARY OF ARGUMENTS
I. The refusal to disqualify Ken Selvig as the assigned
prosecutor representing the State violated the witness-
advocate rule. Mr. Selvig participated below as both
witness and advocate. He blurred those two roles. When he
was called as a witness, he immediately reminded the court
of his desire to make an opening statement. After his
opening, he took the witness stand. When recess was
called while he was on the witness stand, he arranged
through ex parte communication, the resumption of the
hearing for a time neither Mr. Scott's lead counsel nor Mr.
Scott were available or present. He returned to the witness
stand, gave evidence for the State, and then gave a closing
argument. Mr. Selvig's behavior is a living example why a
lawyer should not be both a witness and an advocate in
one proceeding. As a result, the hearing violated Mr.
Scott's due process rights and, was not full and fair. A new
evidentiary hearing must be ordered.
2. Judge Mounts violated well established law when he
refused to disqualify himself. Judge Mounts disclosed to
Mr. Scott's counsel that he knew non-record facts about
Dexter Coffin that counsel might want to familiarize himself
with. Judge Mounts, in fact, had corresponded with Dexter
Coffin during the time period that Mr. Coffin obtained a
confession from Mr. Scott's co-defendant. Dexter Coffin
also reported that Roger Beach, during that time period,
was planning to kill Judge Mounts. These facts warranted
disqualification.
Judge Mounts refused to grant a continuance under
Rogers v. State, 630 So. 2d 513 (Fla. 1993), when one was
requested to comply with the writing requirement. This
itself required disqualification.
Judge Mounts engaged in ex parte communication with the
State in setting the resumption of the evidentiary hearing
for a time when undersigned counsel was not available. He
also engaged in ex parte communications in signing orders
submitted by the State before they were even served on
opposing counsel.
Judge Mounts conducted extra-judicial investigations and
considered non-record material. He completely
disregarded the principles of due process.
Judge Mounts' conduct placed Mr. Scott in fear of not
being heard by an impartial tribunal. The motion to
disqualify should have been required. A reversal is
required.
3. Due process was violated when the resumption of the
evidentiary hearing was scheduled for a time undersigned
counsel had previously indicated he was not available. Mr.
Selvig's claim that he was not required to schedule the
resumption of the hearing at a time convenient for
undersigned counsel constitutes proof of a due process
violation. Mr. Scott was deprived of notice and a fair
opportunity to be heard when his evidentiary hearing
resumed at a trial his lead attorney of five years was not
available and when he, Mr. Scott himself, was not present.
A reversal is required.
4. Due process was violated by conducting the evidentiary
hearing on whether the State failed to disclose or defense
counsel failed to discover exculpatory evidence, without
the presence of Mr. Scott.
5. Due process and Rule 3.190(j) were violated when Judge
Mounts refused to allow depositions of out-of-state
witnesses, Dexter Coffin and Robert Dixon. These
witnesses were not available. Depositions should have
been conducted upon request so that Mr. Scott could
prove their unavailability and present their testimony. The
ruling by Judge Mounts requires a reversal.
6. Due process was violated when Mr. Selvig successfully
argued that this Court's opinion not withstanding, Mr. Scott
was not entitled to present the evidence he had argued to
this Court warranted an evidentiary hearing. The exclusion
of this evidence requires a reversal.
ARGUMENT I
MR. SCOTT'S RIGHTS TO DUE PROCESS AND EQUAL
PROTECTION WERE VIOLATED BY THE PARTICIPATION OF
ASSISTANT STATE ATTORNEY, KEN SELVIG, AS COUNSEL
FOR THE STATE BECAUSE MR. SELVIG WAS A NECESSARY
AND MATERIAL WITNESS WHO HAD A PERSONAL STAKE IN
THE OUTCOME AND ALLOWED THAT PERSONAL STAKE TO
CLOUD HIS JUDGMENT AND VIOLATE THE RULES OF
PROFESSIONAL CONDUCT TO MR. SCOTT'S PREJUDICE.
This Court remanded Mr. Scott's case for an evidentiary
hearing to determine whether a constitutionally adequate
adversarial testing occurred at Mr. Scott's trial when the
jury did not hear certain exculpatory evidence. As the
prosecutor who obtained the conviction and death
sentence against Mr. Scott, Ken Selvig of the Palm Beach
County State Attorney's Office was a fundamental witness in
the resolution of this issue at Mr. Scott's evidentiary
hearing. Mr. Selvig's role as prosecutor at Mr. Scott's jury
trial made him not only a necessary and material witness
but also gave Mr. Selvig a strong interest in the outcome of
the litigation. For this reason, Mr. Selvig had every
incentive to protect himself. As a result, Mr. Selvig
abandoned his "responsibility [as] a minister of justice".
Comment to Rule 4-3.8, Fla. R. Professional Conduct. Mr.
Selvig was determined to exonerate himself from any
alleged misconduct and protect his reputation. Mr. Selvig
had a personal stake in the outcome. Under these
circumstances he should have been disqualified from
participating as counsel of record for the State. Judge
Mounts' actions in allowing Ken Selvig to act as a
prosecutor and witness in Mr. Scott's case extended to Mr.
Selvig the opportunity to manipulate the proceedings in
order to deny Mr. Scott a full and fair hearing. The record of
Mr. Selvig's conduct in this case reveals that from the
beginning, Mr. Selvig consistently acted to do just that.
A. MR. SELVIG AS A WITNESS
The Florida Rules of Professional Responsibility envisioned
the impermissible conflict created when a lawyer plays the
dual role of advocate and witness at trial. Rule 4-3.7 of
Rules of Professional Conduct, clearly states:
(a) When a Lawyer May Testify. A lawyer shall not act as an
advocate at a trial in which the lawyer is likely to be a
necessary witness on behalf of the client except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality
and there is no reason to believe that substantial evidence
will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of the
legal services rendered in the case; or,
(4) disqualification would work a substantial hardship on
the client.
Rule 4-3.7 (emphasis added).
In Mr. Scott's case, Mr. Selvig's testimony did not relate to
an uncontested issue; it did not relate solely to a matter of
formality; it did not relate to the nature and value of legal
services; nor would disqualification have worked a
substantial hardship upon the State.
The Eleventh Circuit Court of Appeals has explained that "a
prosecutor must not act as both prosecutor and witness."
United States v. Hosford, 782 F.2d 936, 938 (11th Cir. 1986).
The Eleventh Circuit explained:
The policy concerns that preclude a prosecutor from also
appearing as a witness were well stated by the United
States Court of Appeals for the Seventh Circuit:
First, the rule eliminates the risk that a testifying
prosecutor will not be a fully objective witness given his
position as an advocate for the government. Second, there
is fear that the prestige or prominence of a government
prosecutor's office will artificially enhance his credibility as
a witness. Third, the performance of dual roles by a
prosecutor might create confusion on the part of the trier
of fact as to whether the prosecutor is speaking in the
capacity of an advocate or of a witness, thus raising the
possibility of the trier according testimonial credit to the
prosecutor's closing argument. Fourth, the rule reflects a
broader concern for public confidence in the
administration of justice, and implements the maxim that
"justice must satisfy the appearance of justice." This
concern is especially significant where the testifying
attorney represents the prosecuting arm of the federal
government. (footnote omitted).
United States v. Johnston, 690 F.2d 638, 643 (7th Cir. 1982).
Hosford, 782 F.2d at 938-39.
Florida state courts have recognized the conflict inherent
in a situation where, as in Mr. Scott's case, a lawyer plays
the dual role of prosecutor and witness. In State v.
Christopher, 623 So. 2d 1228 (Fla. 3rd DCA 1993), it was
stated:
We recognize that the functions of a witness and a
prosecuting attorney must be kept separate and distinct
and that "the practice of acting as both a prosecutor and a
witness is not to be approved and should be indulged in
only under exceptional circumstances." Shargaa v. State,
102 So.2d 809, 813 (1958), cert. denied 358 U.S. 873, 79 S.Ct.
114, 3 L.Ed. 2d 104 (1958). See also Clausell v. State, 455 So.
2d at 1051 n.1
Id., at 1229. In Christopher, disqualification was not
required only because there was no indication that the
prosecutor would in fact be called as a witness.
There have been a number of cases which have held that
the disqualification required by this rule does not require
disqualification of the entire state attorney's office. In State
v. Clausell, 474 So. 2d 1189 (Fla. 1985), this Court found
that, where the Assistant State Attorneys who would be
witnesses were not the assigned attorneys representing
the State in the matter, disqualification of the entire office
was not warranted absent actual prejudice. The opinion
implicitly recognizes that the "advocate-witness" rule
precluded a prosecutor who was a witness in a case from
also acting as prosecutor. Similarly, in Meggs v. McClure,
538 So. 2d 518 (1st DCA 1989), the individual who was the
witness was not acting as the prosecutor in the case. This
Court refused to order disqualification of the entire office
absent actual prejudice.
Citing to Rule 4-3.7 of the Florida Rules of Professional
Conduct and to the "witness-advocate" rule set forth in
State v. Christopher, 623 So. 2d 1228 (1993), Mr. Scott filed
a motion to disqualify Mr. Selvig from the further
prosecution of Mr. Scott's case on December 19, 1995,
asserting that Mr. Selvig would cause irreparable prejudice
to his case were Mr. Selvig also allowed to further engage
in the prosecution of Mr. Scott's case. (Supp. PC-R. 1138-
1141).
In addition to the Motion to Disqualify, Mr. Scott filed a
Motion To Permit Discovery pursuant to this Court's
decision in State v. Lewis, 656 So. 2d 1248 (Fla. 1994)(PC-R.
1135-36). The motion requested permission to depose Ken
Selvig, as he was a relevant and material witness, and such
deposition was necessary for an adequate investigation
and presentation of Mr. Scott's issues at the evidentiary
hearing (PC-R. 1136).
The State, through Ken Selvig, vigorously opposed Mr.
Scott's motions to disqualify and depose Ken Selvig, (PC-R.
1147-1151), claiming that these motions were not only
"nothing more than a veiled attempt to disqualify the
original trial attorney from further participation in [Mr.
Scott's] case," (PC-R. 1149), but were also "a futile attempt
to delay justice and deprive the state of representation by
the most qualified person to handle this case." (PC-R.
1150). The state asserted that Mr. Scott's motion to
disqualify Ken Selvig should be denied, as it failed to show
either that Mr. Selvig would actually be called as a witness,
or that he would "possess any information that would be
helpful to the defense." (PC-R. 1150). The state also argued
that Rule 4-3.7 did not apply to Mr. Selvig, as that rule only
prescribed testimony by a lawyer in his own client's case
(PC-R. 1149-1150).
After hearing on December 27, 1997, the trial court orally
denied Mr. Scott's motions to disqualify and to depose Ken
Selvig, and thereafter entered a written order to this effect.
(Transcript of 12-27-95 Motion Hearing, at 43; PC-R. 1152A).
Ken Selvig continued to represent the State in Mr. Scott's
case during all subsequent proceedings.
At the proceedings on January 23, 1996, Mr. Selvig was the
only representative from the State Attorney's Office
present for Mr. Scott's case. He opposed Mr. Scott's motion
to exclude witnesses. He got Judge Mounts to exempt him,
Ken Selvig, from the sequestration of witnesses. Because
of potential prejudice arising from Mr. Selvig's ability to sit
and listen to other witnesses and shade his own testimony
accordingly, undersigned counsel called Mr. Selvig as his
first witness. Whereupon, Mr. Selvig reminded the court
that he first wished to give an opening statement for the
State. At that time, Mr. Selvig gave an opening statement.
After giving his opening, Mr. Selvig then took the witness
stand, and was still on the stand hours later when Judge
Mounts stopped the proceedings. At the beginning of the
hearing, counsel for Mr. Scott had reiterated his objection
to Ken Selvig's dual role of advocate and witness (PC-TR.
112). However, the State continued to oppose Mr. Selvig's
disqualification, and the court refused to order it.
In fact, Mr. Selvig was the only witness called on Mr. Scott's
behalf on January 23, and Mr. Scott's counsel was not
finished with his direct examination of Mr. Selvig when the
trial court announced its intention to end the proceedings
for that day. During the hearing, Mr. Selvig was questioned
extensively regarding his conduct relating to the
disclosure of exculpatory evidence.
At the February 14, 1996, resumption of the evidentiary
hearing that Mr. Selvig scheduled on an ex parte basis
knowing full well that undersigned counsel was not
available, Mr. Selvig retook the witness stand. Since
neither undersigned counsel was present nor Mr. Scott,
Mary Anderson Mills, Assistant CCR, was not prepared to
go forward. Thereupon, Ms. Terenzio, Assistant Attorney
General, conducted questioning of Mr. Selvig on behalf of
the State. At the conclusion of his testimony, there was no
other evidence to be presented by the State. Mr. Selvig
then gave a closing argument asserting his own credibility,
and argued that 3.850 relief should be denied on the basis
of his own testimony. Clearly, Mr. Selvig was both an
advocate and a witness in violation of the Rules of
Professional Conduct. Mr. Selvig's personal interest in the
proceedings deprived Mr. Scott due process and a fair
hearing.
B. MR. SELVIG'S EX PARTE SCHEDULING OF HEARING
This Court has denounced ex parte communications in the
course of 3.850 proceedings. Rose v. State, 601 So. 2d
1181, 1183 (Fla. 1992):
We are not here concerned with whether an ex parte
communication actually prejudices one party at the
expense of the other. The most insidious result of ex parte
communications is their effect of the appearance of the
impartiality of the tribunal The impartiality of the trial judge
must be beyond question.
Justice Harding wrote a concurring opinion in which he
expressed his view that ex parte communication was
forbidden in scheduling matters as well: "care should be
given that all parties have equal opportunity to participate
in the setting of [a] hearing." Rose, 601 So. 2d at 1184.
At the close of the January 23, 1996, hearing, Judge Mounts
inquired regarding setting a date for the continuation of
the hearing. Undersigned counsel informed Judge Mounts
and the State that he was taking a week's vacation starting
the next day, January 24th, and that he had a previously
scheduled hearing set on or around February 15, 1996. In
response to undersigned counsel's statement, Judge
Mounts indicated:
THE COURT; All right, I'll leave that up to you. I don't - - I
don't want to leave cases like this undisposed of. I don't
want to be an advocate for moving it, you know, but I would
like - - I think it's helpful to have your objections to the
calling of these witnesses in advance so we don't spin
around and sputter and so forth on the date of the hearing.
So get two full days and I'll set that as soon as we can.
Transcript of January 23, 1996 hearing at 217.
With full knowledge of Mr. McClain's obligation to attend
another hearing on February 15, 1996, Ken Selvig through
ex parte contact with Judge Mounts' judicial assistant
immediately reset Mr. Scott's evidentiary hearing for
February 14 and 15, 1996. On January 24, 1996, without
contacting undersigned counsel or anyone at CCR, Mr.
Selvig issued a notice of hearing. Mr. Scott's counsel was
never contacted by the state prior to the setting date. Mr.
Selvig has justified the ex parte setting saying: "there was
never any indication in the record that counsel for Mr.
Scott should be asked what was convenient for him."
Transcript of February 12, 1996, hearing at 291.
Upon receiving notice of the February 14 and 15, 1996
setting, counsel for Mr. Scott filed a Motion For
Continuance Or in the Alternative to Allow CCR to Withdraw
(PC-R. 156-1260). In that motion, and in a hearing which was
held regarding this motion on February 12, 1996, counsel
for Mr. Scott explained in great detail the reasons for his
inability to attend the hearing. Mr. McClain informed the
court that he not only had a previously scheduled hearing
for February 15, 1996, which would prevent him from
attending the currently scheduled evidentiary hearing set
in Mr. Scott's case, but that a warrant had been signed in
Rickey Robert's case, the very case with a hearing set for
February 16th in Salisbury, Maryland. In fact due to the
warrant, the nature of the February 16th proceedings was
altered. The proceedings would have to be converted into
an evidentiary hearing. The February 16th hearing had
been scheduled as a status in advance of a March
evidentiary hearing. Given the execution date, the
evidentiary hearing needed to be expedited. Thus it was
necessary for Mr. McClain to travel to Maryland on
February 14th in order to interview witnesses and be
prepared to present evidence at a full blown evidentiary
hearing on February 16th if the Maryland courts granted
Mr. McClain's request to do just that. Accordingly,
undersigned counsel requested that this Court reschedule
Mr. Scott's evidentiary hearing to a date subsequent to the
Roberts' warrant period.
Ken Selvig, who had been in the middle of his testimony on
direct examination when Mr. Scott's hearing concluded on
January 23, 1996, took the amazing position that "there was
never any indication in the record that counsel for Mr.
Scott should be asked what was convenient for him,"
regarding the setting for the continuation of the hearing.
(Transcript of February 12, 1996 hearing, at 291).
Apparently, this Court's opinion in Rose was of no moment
to Mr. Selvig. Obviously, Mr. Selvig's role as a witness
clouded his judgment in his role as an advocate.
Mr. Selvig's actions in setting the hearing on a date he
knew Mr. McClain to be unavailable, on refusing to reset
the hearing on a date Mr. McClain could attend, and on
insisting that Mr. McClain's unprepared and unqualified co-
counsel go forward clearly demonstrates Mr. Selvig's
agenda. His position against his own disqualification was
that the State would lose the best attorney for the job, but
forcing undersigned counsel off the case through the ex
parte scheduling the hearing for the one day that
undersigned counsel indicated he was unavailable was
perfectly acceptable to Mr. Selvig. Guided by his personal
and significant interest in the outcome of the litigation, Mr.
Selvig's intent was to prevent Mr. Scott from receiving
representation by counsel who had the necessary skill and
knowledge of his case. The fact that Mr. Selvig had been on
the stand and was being questioned by Mr. McClain at the
close of the proceedings on January 23, 1996, makes his
actions particularly inappropriate.
Mr. Scott's counsel was deprived of the opportunity to
cross-examine Mr. Selvig or to present evidence to
impeach his testimony from the January 23, 1997, hearing.
Mr. Selvig testified to facts that were not true and then
manipulated the process to deny Mr. Scott the opportunity
to challenge those facts. Had undersigned counsel been
able to prepare for and attend the resumption of the
hearing, he would have presented evidence that the state
had, contrary to Ken Selvig's testimony, relied upon Dexter
Coffin's testimony at the Herman trial for over ten years,
even in the face of Mr. Coffin's repudiation of his testimony
at the Herman trial.
Counsel would have also called the proper records
custodians to establish that over one hundred items of
physical evidence have not been made available to any of
Mr. Scott's postconviction counsel. These items were listed
in the 3.850 motion and in the brief filed in the Florida
Supreme Court. The law enforcement agencies claim that
this evidence was turned over to the State Attorney's
Office, and the State Attorney's Office denied having these
items, and refused to look for them. Counsel would have
called George Barrs, Mr. Scott's trial attorney, to testify in
accord with his affidavit and to testify regarding Mr.
Selvig's ongoing efforts to get Mr. Barrs to alter his
testimony. Counsel would have also called Jon Moyle to
present evidence of Mr. Selvig's conversations with him
revealing his bias and personal interest in the outcome of
the hearing.
Mr. Selvig also worked diligently to ensure that the court
would never hear the testimony of Dexter Coffin and
Robert Dixon. By scheduling the hearing when he did, he
insured that undersigned counsel would not be able to
obtain the presence of these out-of-state witnesses. Mr.
Selvig consistently opposed all efforts on Mr. Scott's
counsel's part to take the depositions of Mr. Coffin and Mr.
Dixon, both of whom were out of state and unavailable.
Again, Mr. Selvig's role as a witness caused him to try to
make sure that other witnesses contradicting his testimony
were not heard.
Mr. Selvig's continued representation of the State in Mr.
Scott's case resulted in a blatant denial of Mr. Scott's rights
to due process and equal protection. Mr. Selvig has a
strong personal interest in protecting his professional
reputation and ensuring the Mr. Scott's conviction and
sentence of death are maintained. Mr. Selvig's role as
prosecutor in Mr. Scott's case has placed him in a position
to deny Mr. Scott his rights to due process and a full and
fair hearing. The record reveals that Mr. Selvig took full
advantage of this opportunity. The harm which resulted to
Mr. Scott's case was significant and would not have
occurred were Mr. Selvig to have been properly
disqualified.
C. MR. SELVIG'S JUROR INTERVIEWS
Rule 4-3.5, Rules of Professional Conduct provides in
pertinent part:
(d) Communication with Jurors. A lawyer shall not:
(4) after dismissal of the jury in a case with which the lawyer
is connected, initiate communication with or cause another
to initiate communication with any juror regarding the trial
except to determine whether the verdict may be subject to
legal challenge; provided, a lawyer may not interview jurors
for this purpose unless the lawyer has reason to believe
that grounds for such challenge may exist; and provided
further, before conducting any such interview the lawyer
file in the cause a notice of intention to interview setting
forth the name of the juror or jurors to be interviewed. A
copy of the notice must be delivered to the trial judge and
opposing counsel a reasonable time before such interview.
On October 10, 1995, Ken Selvig filed a Notice of Intent to
Interview Jurors. The Notice went to the wrong judge. It
was served by mail on undersigned counsel who did not
receive it until October 13, 1995. And in any event, Mr.
Selvig had already conducted the juror interviews.
Subsequently, Mr. Selvig filed an affidavit from a juror
dated October 10, 1995 (PC-R2. 1336). Mr. Selvig's conduct
was in violation of Rule 4-3.5(d).
Undersigned counsel did file an objection to the notice and
set a hearing on his objection. At that hearing on December
27, 1995, Judge Mounts ordered the parties to not
interview jurors without express permission. In violation of
that order, Mr. Selvig obtained a second juror affidavit on
January 23, 1996 (PC-R2. at 1335).
Mr. Selvig's only justification for his action was this Court's
reliance, in its opinion remanding, upon an affidavit
obtained in the course of clemency proceedings on behalf
of clemency counsel, Jon Moyle. That affidavit had been
provided to the Governor without objection during
clemency proceedings. Since it was accepted without
objection during the clemency process, undersigned
counsel presented it with the 3.850 filed in November of
1994. Again there was no objection to it in 1994 in the 3.850
proceedings before Judge Lupo. Nor was there any
objection to it before this Court during the appeal.
Certainly, procedural bars apply to the State as well as to
capital defendants. Cannady v. State, 620 So. 2d 165 (Fla.
1993). Any complaint that the State might have to this
Court's consideration of the affidavit obtained for clemency
purposes is procedurally barred. Moreover, it hardly
justifies Mr. Selvig's action in disregarding the rule and his
subsequent decision to disregard a specific court ruling.
Mr. Selvig's behavior readily demonstrates why he should
have been disqualified from the proceedings below. His
agenda as an interested witness overrode his
professionalism as an advocate.
D. MR. SELVIG'S ATTACK ON THIS COURT
Mr. Selvig's lack of objectivity can also be seen in his
closing argument before Judge Mounts. Again this closing
argument occurred after he had testified as the only
witness due to his scheduling the resumption of the
hearing for a date undersigned was not available. Mr.
Selvig's argument was simply that this Court, in remanding
for an evidentiary hearing, had not reviewed the record.
According to Mr. Selvig, had this Court simply reviewed the
record it would have discovered undersigned counsel's
"supposed" blatant misrepresentations:
Had an examination been made of the record of the case,
simply the cold record, those allegations would have not
made and the fact that they were made is a blatant
misrepresentation of the truth to the Supreme Court and
this Court.
Transcript of February 14, 1996, hearing at 49.
This argument from the man who scheduled the hearing to
occur without undersigned counsel and without the
presence of Mr. Scott, who had flaunted the witness-
advocate rule, who had flaunted Rule 4-3.5(d), who openly
violated the order precluding contact with jurors, and who
engaged in ex parte communication. Mr. Selvig's actions
were designed to deprive Mr. Scott of a fair hearing.
Unfortunately, he succeeded in that endeavor.
E. CONCLUSION
Judge Mounts erred in denying Mr. Scott's motion to
disqualify Mr. Selvig. Mr. Scott was prejudiced by Mr.
Selvig's conduct as both a witness and an advocate.
This case must be remanded to the trial court for an
evidentiary hearing, with instructions that Mr. Selvig be
disqualified from any further involvement or prosecution of
Mr. Scott's case.
ARGUMENT II
JUDGE MOUNTS ERRONEOUSLY FAILED TO DISQUALIFY
HIMSELF.
Mr. Scott was entitled to full and fair Rule 3.850
proceedings, see Holland v. State, 503 So. 2d 1354 (Fla.
1987); Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994);
including the fair determination of the issues by a neutral,
detached judge. The proper focus of this inquiry is on
"matters from which a litigant may reasonably question a
judge's impartiality rather than the judge's perception of his
[or her] ability to act fairly and impartially." Chastine v.
Broome, 629 So. 2d 293, 294 (Fla. 4th DCA 1993). In capital
cases, the trial judge "should be especially sensitive to the
basis for the fear, as the defendant's life is literally at stake,
and the judge's sentencing decision is in fact a life or death
matter." Id. This principal applies in Rule 3.850 proceedings
wherein a capital defendant is challenging his conviction
and sentence of death. Rogers v. State, 630 So. 2d 513 (Fla.
1993); Suarez v. Dugger, 527 So. 2d 191 (Fla. 1988).
Canon 3E, Fla. Code Jud. Conduct, and Rule 2.160, Fla. R.
Jud. Admin., mandate that a judge disqualify himself in a
proceeding "in which the judge's impartiality might
reasonably be questioned," including but not limited to
instances where the judge has a personal bias or prejudice
concerning a party, has personal knowledge of disputed
evidentiary facts concerning the proceeding, or where the
judge has been a material witness concerning the matter in
controversy. Canon 3E(1)(a) & (b), Rule 2.140(d)(1) & (2).
Florida courts have repeatedly held that where a movant
meets these requirements and demonstrates, on the face
of the motion, a basis for relief, a judge who is presented
with a motion for disqualification "shall not pass on the
truth of the facts alleged nor adjudicate the question of
disqualification." Suarez v. Dugger, 527 So. 2d 191 (Fla.
1988) (emphasis added). See Livingston v. State, 441 So. 2d
1083 (Fla. 1983); Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978);
Digeronimo v. Reasbeck, 528 So. 2d 556 (Fla. 4th DCA 1988);
Ryon v. Reasbeck, 525 So. 2d 1025 (Fla. 4th DCA 1988);
Fruhe v. Reasbeck, 525 So. 2d 471 (Fla. 4th DCA 1988); Lake
v. Edwards, 501 So. 2d 759 (Fla. 5th DCA 1987); Davis v.
Nutaro, 510 So. 2d 304 (Fla. 4th DCA 1986); ATS Melbourne,
Inc. v. Jackson, 473 So. 2d 280 (Fla. 5th DCA 1985); Gieseke
v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985); Management
Corp. v. Grossman, 396 So. 2d 1169 (Fla. 3rd DCA 1981). See
also Chastine v. Broome, 629 So. 2d 293 (Fla. 4th DCA 1993).
To establish a basis for relief a movant:
need only show "a well grounded fear that he will not
receive a fair trial at the hands of the judge. It is not a
question of how the judge feels; it is a question of what
feeling resides in the affiant's mind and the basis for such
feeling." State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179
So. 695, 697- 98 (1938). See also Hayslip v. Douglas, 400 So.
2d 553 (Fla. 4th DCA 1981). The question of disqualification
focuses on those matters from which a litigant may
reasonably question a judge's impartiality rather than the
judge's perception of his ability to act fairly and impartially.
Livingston, 441 So. 2d at 1086 (emphasis added); Rogers v.
State, 630 So. 2d at 515 (quoting Livingston). The Fourth
District Court of Appeals recently emphasized that, in a
capital case like Mr. Scott's, judges "should be especially
sensitive to the basis for the fear, as the defendant's life is
literally at stake, and the judge's sentencing decision is in
fact a life or death matter." Chastine v. Broome, 629 So. 2d
at 293.
The United States Supreme Court has also recognized the
basic constitutional precept of a neutral, detached judiciary:
The Due Process Clause entitles a person to an impartial
and disinterested tribunal in both civil and criminal cases.
This requirement of neutrality in adjudicative proceedings
safeguards the two central concerns of procedural due
process, the prevention of unjustified or mistaken
deprivations and the promotion of participation and
dialogue by affected individuals in the decision making
process. See Carey v. Piphus, 435 U.S. 247, 259-262, 266-
267, 98 S.Ct. 1042, 1043, 1050-1052, 1053, 1054, 55 L.Ed.2d
252, (1978). The neutrality requirement helps to guarantee
that life, liberty, or property will not be taken on the basis of
an erroneous or distorted conception of the facts or the
law. See Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct.
893, 907, 47 L.Ed.2d 18 (1976). At the same time, it preserves
both the appearance and reality of fairness, "generating
the feeling, so important to a popular government, that
justice has been done," Joint Anti-Fascist Committee v.
McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 649, 95 L.Ed. 817
(1951)(Frankfurter, J., concurring), by ensuring that no
person will be deprived of his interests in the absence of a
proceeding in which he may present his case with
assurance that the arbiter is not predisposed to find
against him.
Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).
Due process guarantees the right to a neutral, detached
judiciary in order "to convey to the individual a feeling that
the government has dealt with him fairly, as well as to
minimize the risk of mistaken deprivations of protected
interests." Carey v. Piphus, 425 U.S. 247, 262 (1978). The
United States Supreme Court has explained that in deciding
whether a particular judge cannot preside over a litigant's
trial:
the inquiry must be not only whether there was actual bias
on respondent's part, but also whether there was "such a
likelihood of bias or an appearance of bias that the judge
was unable to hold the balance between vindicating the
interests of the court and the interests of the accused."
Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.
2d 921 (1964). "Such a stringent rule may sometimes bar
trial by judges who have no actual bias and who would do
their very best to weigh the scales of justice equally
between contending parties," but due process of law
requires no less. In re Murchison, 349 U.S. 133, 136, 75 S.Ct.
623, 625, 99 L.Ed. 942 (1955).
Taylor v. Hayes, 418 U.S. 488, 501 (1974).
The purpose of the disqualification rules direct that a judge
must avoid even the appearance of impropriety:
It is the established law of this State that every litigant,
including the State in criminal cases, is entitled to nothing
less than the cold neutrality of an impartial judge. It is the
duty of the court to scrupulously guard this right of the
litigant and to refrain from attempting to exercise
jurisdiction in any manner where his qualification to do so
is seriously brought into question. The exercise of any
other policy tends to discredit and place the judiciary in a
compromising attitude which is bad for the administration
of justice. Crosby v. State, 97 So.2d 181 (Fla. 1957); State ex
rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939);
Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); State
ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 3331 (1930).
* * * *
The prejudice of a judge is a delicate question for a litigant
to raise but when raised as a bar to the trial of a cause, if
predicated on grounds with a modicum of reason, the judge
in question should be prompt to recuse himself. No judge
under any circumstances is warranted in sitting in the trial
of a cause who neutrality is shadowed or even questioned.
Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); State
ex rel. Aguiar v. Chappell, 344 So.2d 925 (Fla. 3d DCA 1977).
State v. Steele, 348 So. 2d 398 (Fla. 3d DCA 1977).
Moreover, this Court has held that
"all motions for disqualification of a trial judge must be in
writing and otherwise in conformity with this Court's rules
of procedure. The writing requirement cannot be waived
and a presiding judge must afford a petitioning party a
reasonable opportunity to file its motion. Where a party
discovers mid-trial or mid-hearing that a motion for
disqualification is required, he or she may request a brief
recess - which must be granted - in order to prepare the
appropriate documents."
Rogers v. State, 630 So. 2d at 516.
In Mr. Scott's case, there was far more than the
"appearance of impropriety" on the part of the tribunal. The
record of the proceedings in this case reveal that Judge
Mounts' prejudice toward Mr. Scott's key witnesses, his ex
parte communication with the State, his participation in
extra-judicial investigations, and his consideration of
matters outside the record rendered his impartiality non-
existent. Moreover, new matters arose during the morning
of January 23, 1996. Counsel requested an opportunity to
reduce the new facts to writing pursuant to Rogers, but
Judge Mounts denied the request. Under Rogers, this itself
required disqualification.
A. BIAS AND PREJUDGMENT OF ISSUES AND WITNESSES
At a hearing which took place on January 18, 1996, Judge
Mounts admitted that he had personal knowledge and
familiarity with Dexter Coffin, a witness whom Mr. Scott
intended to call pursuant to the Florida Supreme Court's
explicit directive:
THE COURT: Now, let me share with you, there is the
important role of disclosure in cases, I think civil and
criminal, and I don't know that this really requires
disclosure but it may be of some interest to you.
One of the persons you name in one of those motions is --
MR. ANDERSON: Sir, I believe one of the persons is Dexter
Coffin.
THE COURT: Right. Mr. Coffin was a defendant in my
division many, many years ago, I think. He was also a
person of some, I guess notoriety may be too strong a
word, but he was involved in a number of criminal matters
in this jurisdiction.
I recall finally his case before me and was defended by one
of the most able attorneys that I have ever encountered
and who I became close friends with and who is now
deceased, so I have had his case and he was involved in
other cases in this community.
So there are people who know him and you need to
acquaint yourself with that.
(PC-TR. 1226-1227). These volunteered statements placed
Mr. Scott on notice to investigate Judge Mounts'
"disclosure." Undersigned counsel undertook such an
investigation immediately. However, the disclosure did not
occur until five days before the scheduled evidentiary
hearing. Based upon undersigned counsel's investigation,
a motion to disqualify was filed.
Mr. Scott filed a Motion To Disqualify Judge Mounts on
January 19, 1996, pursuant to the mandates of Canon 3E,
Fla. Code Jud. Conduct, Rule 2.160, Fla. R. Jud. Admin., and
principles of Due Process and Equal Protection.
Specifically, Canon 3(E)(1)(a), indicates that a "judge shall
disqualify himself...where...the judge has...personal
knowledge of disputed evidentiary facts." (PC-R2. 1174-
1197). The January 19th motion was based upon Judge
Mounts' disclosure.
On January 22, 1996, Mr. Scott amended his motion to
disqualify Judge Mounts after discovering, through
additional investigation of Dexter Coffin's criminal court
files, that Judge Mounts had presided over Dexter Coffin's
criminal proceedings while he was incarcerated at the Palm
Beach County Jail in 1979. This coincided with the time
period that Paul Scott and Richard Kondian were awaiting
trial for the murder of James Alessi and with the time
Richard Kondian made statements to Dexter Coffin which
were the subject of Mr. Scott's evidentiary hearing (PC-R2.
1199, 1204). Mr. Coffin's court files also revealed that
during this time period, Judge Mounts had been in receipt
of letters from a Captain Donnelly, who had used Dexter
Coffin as an informant to obtain information against Richard
Kondian by placing them together in the so-called
"Captain's cell." (PC-R2. 1200, 1204). Judge Mounts had also
received correspondence from Dexter Coffin. Therefore,
the very real possibility exists that Judge Mounts may have
had direct knowledge of the exculpatory statements made
by Mr. Kondian.
No further information could be gleaned from Mr. Coffin's
court files, however, as only the docket sheets remained
after the substance of the file had been destroyed (PC-R2.
1200, 1203-1209). Therefore, as Captain Donnelly was
deceased, Judge Mounts was the only person who could
have provided information regarding his personal
involvement with Dexter Coffin. Counsel for Mr. Scott
reiterated these facts to Judge Mounts at the beginning of
the January 23, 1997, evidentiary hearing (PC-TR. 72-78; 82-
89; 96-106).
Additionally, on the morning of January 23rd, Mr. Scott's
counsel informed Judge Mounts that he had talked to
Attorney David Roth immediately prior to the hearing since
Mr. Roth had stopped by the courtroom. Mr. Roth had
information relevant to Judge Mounts' involvement with
Dexter Coffin.
Mr. Roth had been Dexter Coffin's attorney in 1978 and
1979. Mr. Roth indicated that he had specific dealings with
Judge Mounts regarding Dexter Coffin. Mr. Roth indicated
that undersigned counsel needed to check out the Roger
Beach case. Pursuant to this Court's ruling in Rogers v.
State, 630 So. 2d 513 (1993), Mr. Scott's counsel requested
that a recess be granted in order to conduct further
questions of Mr. Roth or to call Mr. Roth to the stand in
order to elicit information relevant to Mr. Scott's Motion to
Disqualify (PC-TR. 77). However, Judge Mounts refused to
follow the procedure set forth in Rogers, refused to
disqualify himself (PC-TR. 106).
Follow-up investigation occurred subsequent to the
January 23, 1996, hearing. It revealed that Judge Mounts
had had direct and significant contact with Captain Donnelly
regarding Donnelly's use of informants to obtain
convictions for the Palm Beach County State Attorney's
Office. One of these informants was Dexter Coffin. Further
inquiry revealed that Dexter Coffin was directly involved in
providing information to Captain Donnelly regarding Roger
Beach, a man who had threatened to kill Judge Mounts, and
that in May of 1979 correspondence occurred between
Captain Donnelly and Judge Mounts regarding Dexter
Coffin. Thus, Dexter Coffin gave evidence to the State that
Roger Beach had threatened to kill Judge Mounts. The
record shows direct correspondence between Dexter
Coffin and Judge Mounts, although the correspondence
has itself been destroyed and Captain Donnelly is
deceased. Dexter Coffin's statements regarding Roger
Beach were subsequently found insufficient. Short of
talking to Judge Mounts, counsel had no means of learning
the content of the communications. It should also be noted
that May of 1979 was after Captain Donnelly had been
advised by Mr. Coffin of Mr. Kondian's alleged confession.
Further investigation revealed that Judge Mounts had
taken a personal interest in the sentencing consideration
Dexter Coffin had received after testifying in the Mark
Herman case, another case in which he had acted as an
informant. See Defendant's Second Amended Motion To
Disqualify Judge, January 26, 1996. This Court made
statements to the media regarding the public pressure he
felt to impose a harsh sentence on Dexter Coffin when he
presided over his case. See Defendant's Sixth Motion to
Disqualify Judge, April 18, 1996.
Judge Mounts was clearly privy to non-record evidence
and information. Judge Mounts felt compelled to make this
disclosure. Yet, despite his personal relationship with
Dexter Coffin and his recognition that he knew information
that counsel "need[ed] to acquaint yourself with," Judge
Mounts refused to disqualify himself. He even refused to
comply with the clear language of Rogers and grant
counsel an opportunity to submit a written motion to
disqualify. Judge Mounts erred. The motion to disqualify
should have been granted.
B. EX-PARTE COMMUNICATION WITH THE STATE
Judge Mounts has also engaged in ex-parte contact with
the State. Despite judicial statements directing the State to
contact Mr. Scott's counsel regarding possible hearing
dates for the continuation of Mr. Scott's evidentiary hearing
at the close of the January 23, 1996, hearing, Judge Mounts
allowed the State to set the remainder of the evidentiary
hearing in Mr. Scott's case for a day on which undersigned
counsel had specifically informed both the State and Judge
Mounts that he was not available (PC-TR. 281). Judge
Mounts refused to continue the remainder of Mr. Scott's
evidentiary hearing, despite numerous assertions by
undersigned counsel that he was under warrant and would
not be able to attend the hearing (PC-TR. 285-323). Despite
these compelling factors mandating disqualification, Judge
Mounts refused to disqualify himself.
The Code of Judicial Conduct states: "A judge should []
neither initiate nor consider ex parte or other
communications concerning a pending or impending
proceeding." Fla. Bar Code Jud. Conduct, Canon 3 A(4)
(emphasis supplied). The trier of fact cannot have ex parte
communications with a party. For that reason alone, recusal
is required. Love v. State, 569 So. 2d 807 (1st DCA 1990);
Rose v. State, 601 So. 1181 (Fla. 1992); McKenzie v. Risley,
915 F.2d 1396 (9th Cir. 1990).
Judge Mounts engaged in additional ex parte
communication with the State subsequent to the February
14, 1997, hearing. On May 13, 1996, Mr. Scott received a
copy of a proposed order submitted by the State to Judge
Mounts on April 29, 1996. Judge Mounts had signed the
State's proposed order on May 1, 1996, a day before
undersigned counsel became aware of the proposed
order's existence (PC-R2. 1932-1933). The subject of this
proposed order, which vacated Judge Mounts' April 23,
1996 order denying Mr. Scott's postconviction claims,
denied Mr. Scott's pending Sixth Motion to Disqualify Judge
Mounts and Motion to Permit Discovery, and then
reinstated the denial of Mr. Scott's postconviction claims,
was not the product of any "on the record" directive from
Judge Mounts (PC-R2. 1932-1933). Mr. Scott was not even
aware of the Order's existence until after it had been
signed by Judge Mounts, and therefore was not provided
with the opportunity to respond. The inescapable
conclusion is that the Order was the product of ex parte
communication between Ken Selvig and Judge Mounts.
The current situation is identical to the issue recently
addressed by this Court in Rose v. State, 601 So. 2d 1181
(Fla. 1992). As observed in Rose, it is improper for the State
to prepare an order for the court's signature without the
defense being given an opportunity to object. As this Court
stated: "Under these facts we must assume that the trial
court, in an ex parte communication, had requested the
State to prepare the proposed order." Rose at 320.
Because of these improper ex parte communications with
the State, disqualification of Judge Mounts was mandated.
This case should be remanded to the Circuit Court for new
postconviction proceedings before a new trial judge.
C. EXTRA-JUDICIAL INVESTIGATIONS AND CONSIDERATION
OF MATTERS OUTSIDE THE RECORD
Instead of disqualifying himself, Judge Mounts improperly
engaged in extra-judicial investigations of the issues.
These investigations included discussions with his Judicial
Assistant, Robert Hesse, regarding his involvement in
improper actions complained of in Mr. Scott's motions to
disqualify. On April 4, 1996, Robert Hesse wrote a letter to
Judge Mounts which contained the following statement:
You have invited me to review and respond, at my option,
to the several references to statements attributed to me in
the course of this case.
(PC-R2. 1845). This letter proceeds to address several of
the issues raised in Mr. Scott's motions. This letter is the
only indication Mr. Scott has of the obvious extra-judicial
investigation Judge Mounts was conducting into Mr.
Scott's case. All investigation of this matter occurred off
the record and without Mr. Scott's knowledge or
opportunity to respond. Mr. Scott's requests that he be
permitted to conduct discovery of the nature of this
investigation were denied by Judge Mounts (PC-R2. 1932-
1933). Also denied was Mr. Scott's Motion to Disqualify
Judge Mounts based on these occurrences (PC-R2. 1932-
1933). Mr. Scott can therefore only guess as to the nature
and extent of Judge Mount's investigation of this matter.
Additionally, undersigned counsel received an order dated
April 30, 1996, from this Court which indicated that Judge
Mounts had been conducting an extra-judicial investigation
of Janet S. O'Keefe, a juror in Mr. Scott's case, through her
husband, a bailiff in this Court's division. (PC-R2. 1931). The
order stated:
On Friday, April 19, 1996, Mr. Timothy Sullivan, the Bailiff of
this Division ("S"), brought to my attention the fact that his
wife was a juror in the trial of this defendant in this case.
She was apparently visited without notice by a
representative of CCR, Mr. Michael R. Chavis sometime in
February-March, 1994. She declined to be interviewed.
(PC-R2. 1931). The order subsequently directed that there
be no further communication with Ms. Sullivan without
leave of court (PC-R2. 1931).
Once again, Judge Mounts had obviously been engaging in
extra-judicial investigation of Mr. Scott's case. Mr. Scott
was never given the opportunity to investigate this matter
and it was not the subject of any hearing. Mr. Scott's
Seventh Motion to Disqualify, based on this occurrence
and corresponding motion to permit discovery were never
addressed or even ruled on by Judge Mounts (PC-1958-
1971; 1972-1974).
Mr. Scott can only speculate about the motivation for this
order, entered more than two years after the alleged
contact took place. However, its existence raises serious
questions on Mr. Scott's part regarding the prosecuting
attorney's involvement in this matter, considering Mr.
Selvig's improper conduct regarding juror interviews and
inappropriate attempts to make the jury affidavits a matter
of record after the hearing had been continued. Mr. Selvig
filed a notice of intent to interview jurors in October of
1995 to which undersigned counsel objected. At a hearing
in December of 1995, the matter was addressed on the
record and this Court declined to enter an order, although
the Court stated that no further communication with jurors
should take place off the record (PC-TR. 31-32). Contrary to
this Court's December 27, 1995, directives, however, the
State continued to interview jurors (PC-R2. 1335). Despite
the fact that the jury vote had not been an issue remanded
for consideration and had not been raised at the
evidentiary hearing, the State improperly made jurors the
subject of its Memorandum in Opposition to Mr. Scott's
Motion for Postconviction Relief. (PC-R2. 1330-1331, 1335-
1336). Thereafter, Judge Mounts incorporated the State's
Memorandum, containing these affidavits, in his orders
denying Mr. Scott's postconviction claims. (PC-R2. 1849-
1930, 1932-1933). The May 1, 1996, order was signed as the
result of ex parte communication by the State (PC-R2. 1932-
1933). Ironically, the April 30, 1996, order regarding Janet
O'Keefe was signed only one day prior to this order (PC-R2.
1931).
It is clear that, at the very least, Judge Mounts was
conducting extra-judicial investigation into matters which
concern the issues in Mr. Scott's case. This investigation
has occurred off the record, outside the scope of any
hearing, and without prior notice to Mr. Scott or his
counsel. Such conduct was found to be subject to
discipline by the Florida Judicial Qualifications Commission.
Inquiry Re Perry, 586 So. 2d 1054 (Fla. 1991).
Additionally, by incorporating the juror affidavits filed by
the State after the evidentiary hearing into his orders
denying Mr. Scott's postconviction claims, Judge Mounts
improperly considered matters outside the record and
showed his clear and unswerving deference to the State.
By signing the May 1, 1996, proposed order incorporating
the State's Memorandum in Opposition to Mr. Scott's
Postconviction Motion, Judge Mounts condoned
procedures which not only directly contradict his own prior
rulings and statements regarding this matter, but which
also sanction the blatantly unethical and deceitful practices
employed by the State regarding the interviewing of jurors
in this case.
Conspicuously absent from Judge Mounts' order forbidding
contact with Juror O'Keefe is any mention of the State's
conduct in interviewing Jurors Alho and Federico, despite
Judge Mounts' undisputed knowledge, at least since
February 14, 1996, that they had been interviewed by the
State. Judge Mounts' failure to address the fact that Mr.
Scott's undersigned counsel objected to the State's
conduct and to address the State's conduct reflects bias.
D. CONCLUSION
These incidents are certainly "sufficient to warrant fear on
[Mr. Scott]'s part that he would not receive a fair hearing by
the assigned judge." Suarez v. Dugger, 527 So. 2d 190, 191,
192 (Fla. 1988); Livingston v. State, 441 So. 2d 1083 (Fla.
1983); Rogers v. State, 630 So. 2d at 516. A fair hearing
before an impartial tribunal is a basic requirement of due
process. In re Murchison, 349 U.S. 133 (1955). Absent a fair
and impartial tribunal, there is no full and fair hearing. Even
the appearance of partiality or prejudgment is sufficient to
warrant disqualification. This case should be remanded to
the circuit court for new post-conviction proceedings
before a new trial judge.
ARGUMENT III
MR. SCOTT WAS DENIED DUE PROCESS, AND A FULL AND
FAIR HEARING ON HIS MOTION TO VACATE THE CIRCUIT
COURT AND THE STATE VIOLATED MR. SCOTT'S RIGHT TO
DUE PROCESS AND A FULL AND FAIR HEARING BY
DEPRIVING MR. SCOTT OF COMPETENT AND EFFECTIVE
COUNSEL WHEN THEY SET MR. SCOTT'S EVIDENTIARY
HEARING AT A TIME WHEN THEY KNEW MR. SCOTT'S
COUNSEL COULD NOT ATTEND AND HIS WITNESSES COULD
NOT BE PRESENT.
On July 20, 1995, this Court reversed and remanded Mr.
Scott's case for an evidentiary hearing on Claim I and Claim
II, as well as on Mr. Scott's Chapter 119 claim. In words it
undoubtedly felt could not be misunderstood, this Court
specifically directed the Circuit Court to hear evidence of
the following items in consideration of Mr. Scott's claims
that the state violated the principles of Brady v. Maryland,
373 U.S. 83 (1963): (1) a statement by Dexter Coffin in which
Coffin contends he told police officials that Richard
Kondian, Scott's co-defendant, had admitted he killed the
victim; (2) a statement by Robert Dixon, in which Dixon
contends he told police officials the Kondian was angry
with Scott for running out on him at the murder scene; (3) a
photograph of a bloody ring which suggests that Kondian
struck the fatal blow with a champagne bottle; (4) Public
Records claims. Scott v. State, 657 So. 2d 1129 (Fla. 1995).
Certainly, this Court remanded Mr. Scott's case intending
that he receive a full and fair evidentiary hearing on the
above-stated matters, and that during this hearing Mr.
Scott receive the assistance of competent and effective
counsel. Nevertheless, to this day no such hearing has
occurred. The record of the proceedings in Mr. Scott's case
is fraught with error, caused in part by the prosecuting
attorney's persistent efforts to prevent Mr. Scott's
evidence from being presented because of his personal
interest in preventing a full airing of his actions before and
during Mr. Scott's trial, and in part by Judge Mounts' failure
to disqualify himself. These factors, combined with the
exclusion of Mr. Scott's evidence and other improper
actions and rulings, have worked to deny to Mr. Scott his
right to the full and fair hearing of his claims.
Postconviction proceedings in Florida are governed by the
principles of due process no less than trial or sentencing
proceedings. See, e.g., Huff v. State, 622 So. 2d 982 (Fla.
1993); Teffeteller v. Dugger, 676 So. 2d 369, 371 (Fla. 1996);
Johnson v. Singletary, 647 So. 2d 106, 111 n.3 (Fla. 1994).
In Skull v. State, 569 So. 2d 1251 (Fla. 1990), this Court
recognized the particular importance of affording due
process in a death case:
The essence of due process is that fair notice and a
reasonable opportunity to be heard must be given to
interested parties before judgment is rendered. Tibbetts v.
Olson, 91 Fla. 824, 108 So. 679 (1926). Due process
envisions a law that hears before it condemns, proceeds
upon inquiry, and renders judgment only after proper
consideration of issues advanced by adversarial parties.
State ex rel. Munch v. Davis, 143 Fla. 236, 244, 196 So. 491,
494 (1940). In this respect the term "due process"
embodies a fundamental conception of fairness that
derives ultimately from the natural rights of all individuals.
See art. I, § 9, Fla. Const.
Id. at 1252. In Skull, this Court had remanded the case to
the circuit court for a new sentencing hearing. The trial
court in Skull scheduled this hearing two days after the
mandate had arrived, which fell during the Christmas
holidays. Id. Trial counsel's motions for continuance for
time to prepare for the hearing were denied by the trial
court and the sentencing went forward. This Court vacated
Mr. Skull's sentence, finding that "haste has no place in a
proceeding in which a person may be sentenced to death."
Id.
The predicament in which the trial attorney found herself in
the Skull case is analogous to that in which Mr. Scott's
counsel found himself during the proceedings in Mr.
Scott's case. From the beginning, the State has worked
diligently to prevent the full and fair litigation of the issues
in Mr. Scott's case through the use of litigation tactics and
maneuvers designed to prevent Mr. Scott's counsel from
presenting his claims. These actions were condoned
without question by the trial judge, who compounded these
errors by his own actions and improper rulings. The record
of the State and trial court's actions in this case speaks for
itself.
On November 1, 1995, the trial court filed an order which
stated the following:
Please respond as requested and feel free to make any
additional contribution which might help to advance the
cause and narrow the issues. I ask the attorneys to submit
a chronology of the essential events since the conviction
and to recommend matters that need to be considered at
the next hearing, the length of that hearing and the date.
On November 14, 1995, the State filed a pleading with the
trial court in which it requested that the court set Mr.
Scott's evidentiary hearing on or before December 15,
1995, and estimated that the hearing would take
approximately three hours. Mr. Scott's counsel also
responded to the trial court's request for information on
November 14, 1995. In that response, undersigned counsel
explained that he was handling a warrant case with an
execution date of December 1, 1995 (PC-R2. 1110-1109). Mr.
McClain also explained that he was the only attorney at CCR
with the requisite knowledge and experience with Mr.
Scott's case to provide him with adequate representation at
an evidentiary hearing.
On December 17, 1995, defense counsel learned through
Robert Hesse, Judge Mounts' judicial assistant, that
pursuant to the State's request, an evidentiary hearing
would be scheduled for December 14, 1995. Mary Anderson
Mills, an assistant CCR, actually spoke with Mr. Hesse
because of Mr. McClain's unavailability. At that time, Mr.
McClain was also lead counsel on a case under an active
death warrant, and was unable to prepare adequately for
Mr. Scott's hearing. See White v. Singletary, 663 So. 2d 1324
(Fla. 1995) (Martin McClain was lead counsel for Jerry White
who was executed on December 4, 1995).
On November 17, 1995, undersigned counsel sent a letter
to the circuit court outlining the reasons for his inability to
prepare for a December 14, 1995, evidentiary hearing. In
that letter, Mr. McClain indicated that the State had
underestimated the length of the hearing and ignored
other issues that were to be resolved.
The afore-mentioned letter was ignored by the circuit court.
Robert Hesse informed Mary Anderson, since Mr. McClain
was in Orlando litigating Mr. White's case, that the
December 14, 1995, hearing would only be continued if the
State were to agree to such a continuance. Upon
contacting Mr. Selvig regarding his position on the
continuance, Mary Anderson was informed that the State
would agree to the continuance only on the condition that
the hearing be reset for sometime in January. Undersigned
counsel had little choice, with Mr. White's execution
pending, but to accept the State's conditions and agree to a
January hearing date. Interestingly, upon contacting Bob
Hesse regarding the State's position on the hearing date,
counsel was informed that there was no need for counsel
to file a motion for continuance of the hearing as the
hearing had never been set. This was in clear contradiction
to the information previously given to Ms. Anderson.
Mr. McClain was not able to turn his attention to the
preparation of Mr. Scott's case until the completion of his
work on behalf of Mr. White. In preparing for the hearing,
Mr. McClain directed his investigator to locate Dexter
Coffin and Robert Dixon, both specifically mentioned by this
Court in its opinion remanding Mr. Scott's case for
evidentiary hearing. It was not until the beginning of
January of 1996 that counsel's investigator located Dexter
Coffin and Robert Dixon. At that time, it was learned that
both witnesses were outside the territorial jurisdiction of
the Court, as Dexter Coffin was then incarcerated in the
State of Virginia, and Robert Dixon was then on parole in
the State of California, with the condition that he not leave
the State (PC-R. 1999-2001)
Immediately after locating these witnesses, Mr. Scott's
counsel attempted on January 11, 1996, to apprise the
Court of this situation and to take steps to ensure that the
testimony of these unavailable witnesses would be
preserved and presented at the hearing pursuant to Rule
3.190(j) of the Florida Rules of Criminal Procedure (PC-R.
1153-1155). An immediate hearing on these motions was
requested in order to obtain a ruling which would enable
counsel to prepare for the introduction of the testimony of
witnesses Coffin and Dixon. It is common practice in Florida
capital post-conviction proceedings for depositions of out-
of-state witnesses to be admitted in lieu of live testimony.
In fact, as long as the request is made more than ten days
before the trial date, the request must be granted. See
Rule 3.190(j); Argument V, infra.
However, counsel was informed by Judge Mounts' judicial
assistant that no hearing time was available prior January
23, 1996, to hear the motion (PC-R. 1162). Because of the
untenable situation created by Judge Mounts' refusal to
rule regarding the depositions prior to January 23, 1996,
Mr. Scott's counsel requested that a continuance of the
hearing be granted (PC-R. 1161-1163). Judge Mounts then
found hearing time on January 18, 1996. Mr. Selvig opposed
Mr. Scott's motions to take depositions to perpetuate
testimony on the ground that he wanted Mr. Dixon and Mr.
Coffin present in Florida so that he could then charge them
with perjury (PC-TR. 54). Mr. Selvig, with no evidence to
back up his claim, also insisted that the presence of Mr.
Dixon and Mr. Coffin in Florida could be obtained (PC-TR.
54). Judge Mounts denied Mr. Scott's request to depose
Mr. Dixon and Mr. Coffin.
On January 23, 1996, a partial evidentiary hearing was
conducted before Judge Mounts. Because Judge Mounts
had refused to rule on Mr. Scott's motion to take the
depositions of Dexter Coffin and Robert Dixon until January
18, 1997, and had refused to grant Mr. Scott's motion to
continue Mr. Scott's evidentiary hearing in order to attempt
to secure out-of-state subpoenas, Mr. McClain was unable
to prepare or present their testimony at the January 23,
1996, hearing.
At the end of the day, Judge Mounts recognized that more
time would need to be calendared for the hearing, as it
would not be concluded on January 23, 1996 (PC-TR. 275).
At that time, Mr. McClain, Mr. Scott's counsel, indicated that
he was aware that there were dates in the near future on
which he would be unavailable to conduct the remainder of
the hearing, as he had previously scheduled hearings on
those dates. One of the conflict dates specifically
mentioned by Mr. McClain was February 15, 1996. Judge
Mounts made the following responses to Mr. McClain's
statements:
THE COURT: Well, out of an abundance of caution, let's
schedule two days and just get it committed in and
reserved.
(PC-TR. 278).
THE COURT: All right, I'll leave that up to you. I don't -- I
don't want to leave cases like this undisposed of....So get
two full days and I'll set that as soon as we can.
(PC-TR. 281). It is obvious that Judge Mounts intended for
Mr. McClain to have input into the date selected for the
hearing.
On January 26, 1996, Mr. McClain received notice that the
State had set the remainder of the evidentiary hearing on
February 14 and 15, 1996. No one from the State or Judge
Mounts' office had ever contacted Mr. McClain regarding
these dates.
The Office of the Capital Collateral Representative (CCR) is
required by law to provide effective legal representation to
all death row inmates in post-conviction proceedings. See
Spaziano v. State, 660 So. 2d 1363, 1370 (Fla. 1995); Spalding
v. Dugger, 526 So. 2d 71 (Fla. 1988). Undersigned counsel
was the only attorney at CCR with the requisite knowledge
and experience with Mr. Scott's case to provide him with
adequate representation at an evidentiary hearing. He had
been Mr. Scott's lead counsel since March of 1991. The
proceedings of Mr. Scott's case stretch over the length of
approximately seventeen (17) years. Consequently, the
records and pleadings in Mr. Scott's case are voluminous.
Additionally, the legal issues involved in Mr. Scott's case
are far more complex than those involved in an original
post-conviction proceeding. Undersigned counsel's
second chair, Mary K. Anderson Mills, had attended her
first evidentiary hearing on January 1, 1996, in the case of
Porter v. State. She had attended this hearing as a third
chair, and did not participate in the hearing other than to
observe and assist lead counsel in the case. Ms. Anderson
Mills' inexperience, coupled with her unfamiliarity with the
issues in Mr. Scott's case, made it impossible for her to
render the effective assistance required by Spaziano and
Spalding.
Because of this, Ms. Anderson-Mills' representation of Mr.
Scott at the evidentiary hearing would have been in direct
contravention of the Rules of Professional Conduct,
promulgated by the Florida Bar and approved by this Court,
and therefore subject to discipline. Rule 4-1.1 of the Rules
of Professional Conduct clearly states that "[a] lawyer shall
provide competent representation to a client. Competent
representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for
the representation. The comments to that rule clarify that in
making the determination of requisite knowledge and skill,
"relevant factors include the relative complexity and
specialized nature of the matter, the lawyer's general
experience, the lawyer's training and experience in the
field in question, the preparation and study the lawyer is
able to give the matter, and whether it is feasible to refer
the matter to, or associate or consult with, a lawyer of
established competence in the field in question." See
comments Rule 4-1.1 of Rules of Professional Conduct.
Because of his responsibilities in the pending Roberts
warrant case, Mr. McClain was not able to attend the Paul
Scott evidentiary hearing on February 14 or 15. In an effort
to diligently apprise the circuit court and the State of his
inability to attend the February 14 and 15, 1996 hearing,
undersigned counsel filed a Motion for Continuance or in
the Alternative to Allow CCR to Withdraw on January 31,
1996. In this motion he informed the court that he not only
had a previously scheduled hearing which would prevent
him from attending the currently scheduled evidentiary
hearing set in Mr. Scott's case, but that a warrant had been
signed in Rickey Robert's case, the very case with a
hearing set for February 16th in Salisbury, Maryland. In fact,
due to the warrant, the February 16th proceedings were
going to be longer and of more significance requiring Mr.
McClain to travel to Maryland on February 14th in order to
interview witnesses and prepare to present evidence at a
full-blown evidentiary hearing on February 16th if the
Maryland courts granted Mr. McClain's request to do just
that. Accordingly, undersigned counsel requested that
Judge Mounts reschedule Mr. Scott's evidentiary hearing
to a date subsequent to the Roberts' warrant period.
Included with this motion was a request for hearing.
A copy of this motion was faxed to the circuit court on
January 31, 1996. However, undersigned counsel heard
nothing from the circuit court regarding the hearing he had
requested until the second week in February. Meanwhile,
Mr. McClain had scheduled to travel to California on
February 9th to take the deposition of Robert Dixon on
February 10th in order to proffer Mr. Dixon's unavailability
and his testimony. On February 5, 1996, undersigned
counsel was informed that the circuit court would take up
the motion for continuance on February 9, 1996 at 4:00 p.m.
Accordingly, Mr. McClain arranged to have Ms. Anderson
cover the deposition armed with a cellular phone and a list
of all questions to be asked. However, undersigned
counsel was later informed on February 6th by Judge
Mounts' Judicial Assistant, Robert Hesse, that because of a
personal matter the court would not hear the motion until
February 12, 1996 at 11:00 p.m., two days prior to the
February 14, 1996 hearing date. Robert Hesse specifically
averred that the court had no prior time available to hear
this motion for continuance.
A telephonic hearing regarding undersigned counsel's
request for continuance or permission to withdraw and a
Third Amended Motion To Disqualify Judge Mounts was
held on February 12, 1996. During the hearing, Mr. Selvig,
who had not filed a response, opposed the Motion For
Continuance and Judge Mounts refused to continue the
hearing. Relying on the transcript of the January 23, 1996,
evidentiary hearing, Mr. Selvig argued that "there was
never any indication in the record that counsel for Mr.
Scott should be asked what was convenient for him." (PC-
TR. 291). Conveniently, Mr. Selvig read only portions of the
transcript into the record (PC-TR. 291). Although
undersigned counsel had requested a copy of the January
23, 1996, transcript in writing subsequent to the hearing, he
was not provided with a copy until after the hearing on
February 14, 1996. The State, however, who conceded in
the February 14, 1996, hearing that they had not even been
required to make a written request for the transcript, was
given a copy of the January 23, 1996, hearing transcript
prior to the February 12, 1996, hearing (PC-TR. 290).
Because undersigned counsel was denied access to this
transcript, he was unable to provide the full colloquy
between Judge Mounts, Mr. Selvig and undersigned
counsel regarding the setting of the new hearing date,
giving Mr. Selvig the opportunity to present a misleading
picture of that colloquy.
Undersigned counsel set forth in detail the reasons for his
inability to attend the February 14 and 15 hearing.
Undersigned counsel informed Judge Mounts, as he had
informed Judge Mounts and Mr. Selvig on January 23, 1996,
that he would not be available to conduct an evidentiary
hearing on those dates due to his involvement with a
hearing in Salisbury, Maryland, regarding Rickey Roberts
(PC-TR. 293-296). Undersigned counsel further explained to
Judge Mounts that the hearing set in Maryland was a pre-
evidentiary hearing to the main evidentiary hearing set on
March 22, 1996, although Mr. McClain was asking to convert
the February 16th hearing into an evidentiary hearing and
had to be prepared to present all of the necessary
evidence. Because an execution warrant had been signed
for Rickey Roberts by the Governor, at the Attorney
General's urging, for February 23, 1996, undersigned
counsel had been compelled to take measures to expedite
the Maryland evidentiary hearing.
Undersigned counsel explained that as lead attorney on
Mr. Roberts' case, his presence in Maryland during the time
scheduled for the Scott evidentiary hearing had become
essential as the case was very complex and involved the
presentation of testimony by numerous witnesses. Id. at 15-
16. Undersigned counsel advised the circuit court that the
Attorney General had argued to this Court that a warrant
case must take top priority and that any other case was
merely a "cat in a tree." Id. at 16-17. In accordance with this
position, undersigned counsel informed the court that this
Court had recently continued an oral argument set in
Terrell Johnson because of undersigned counsel's role as
lead attorney in Rickey Roberts' case. After receiving the
notice of setting, Mr. McClain made every effort to notify
Judge Mounts that he would not be available to represent
Mr. Scott at an evidentiary hearing set on February 14 and
15, and that no other CCR attorney had the requisite skill,
knowledge and familiarity with the facts of Mr. Scott's case
to provide effective representation to him on those dates.
Mr. Selvig, who was both a witness and an advocate,
insisted that the hearing go forward, asserting that Ms.
Anderson Mills should be required to conduct the hearing
in Mr. McClain's place (PC-TR. 306). According to Mr. Selvig,
the evidentiary hearing was properly set without
consideration to Mr. McClain's schedule. Mr. Selvig was
adamant that only his schedule and this Court's schedule
were relevant considerations.
On February 14, 1996, Judge Mounts conducted the
remainder of the evidentiary hearing in Mr. Scott's case
despite the fact that neither Mr. McClain nor Paul Scott
were present. The situation caused by Mr. McClain's
inability to attend the hearing was exacerbated by the trial
court's failure to ensure Mr. Scott's presence (PC-TR. 326-
338). Ms. Anderson Mills informed the court that neither Mr.
Scott nor Mr. McClain were available for consultation and
that Mr. Scott was not waiving his presence at the hearing.
However, Mr. Selvig assured Judge Mounts that Mr. Scott's
presence was not required at the hearing, despite the fact
that Mr. Selvig had no case law to support this position (PC-
TR. 338). Judge Mounts asked Mr. Selvig if he was willing to
conduct the hearing without Mr. Scott knowing that the
appellate court would review this issue (PC-TR. 350-351).
Based on the State's assertions that it was, Judge Mounts
announced that he would conduct the hearing in Mr. Scott's
absence (PC-TR. 351).
Ms. Anderson Mills also repeatedly informed the Court that
she was not competent or prepared to represent Mr. Scott,
and that she could not go forward (PC-TR. 338, 339, 341,
342, 344, 345, 347, 348, 354, 355, 365,367,368,370, 395).
Nevertheless, the state insisted that Ms. Anderson Mills
was qualified to represent Mr. Scott, asserting that "Miss
Anderson's self-imposed that she's not qualified is from no
action by the State telling her that she's not qualified to
handle this case." (PC-TR. 349).
Thereafter, the hearing went forward in the absence of Mr.
Scott and in the absence Mr. McClain. Because he was not
represented by prepared or effective counsel, Mr. Scott
received the equivalent of no representation during this
hearing.
The state and trial court's actions in setting the February
14, 1996, hearing on a date they knew Mr. McClain could not
be present coupled with their insistence that the hearing
go forward at all costs, resulted in a denial of Mr. Scott's
rights to due process and effective assistance of counsel.
Particularly distressing is the ease with which these errors
could have been corrected by either the State or the trial
court. All the State need have done was to make a single,
simple phone call to opposing counsel to obtain a mutually
agreeable hearing date for the continuation of the
evidentiary hearing, allowing Mr. McClain to be present and
prepared and able to present his witnesses. In the
alternative, the State should have agreed to continue the
February 14, 1996, hearing date to a date when Mr. McClain
could be present. However, the State and trial court failed
to engage in these reasonable practices. As a result, Mr.
Scott's case must be remanded for a new evidentiary
hearing.
ARGUMENT IV
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO
ENSURE MR. SCOTT'S PRESENCE DURING CRITICAL STAGES
OF HIS POSTCONVICTION HEARING, AND AS A RESULT MR.
SCOTT'S RIGHTS TO DUE PROCESS WERE VIOLATED.
Mr. Scott's Constitutional rights to due process and a full
and fair hearing were violated when the trial court ordered
that the February 14, 1996, evidentiary hearing proceed in
Mr. Scott's absence.
In Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982), the
Eleventh Circuit declared the right of a criminal defendant
to be present "extends to all hearings which are in
essential part of the trial--i.e., to all proceedings at which
the defendant's presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend
against the charge.'" 685 F.2d at 1256 (quoting Snyder v.
Massachusetts, 54 S. Ct. 330, 332 (1934)). Although the
Proffitt court was not specifically addressing the issue of a
defendant's presence at an evidentiary hearing, the
language used certainly applies to that situation, as the
Court emphasized that it was the purpose of the hearing
and not its timing which was the determinative issue in
whether the defendant's presence is required. Id. at 1257.
This Court has recently recognized the right of a defendant
to be present at an evidentiary hearing regarding his
postconviction claims. In Teffeteller v. Dugger, 676 So. 2d
369 (Fla. 1996), this Court ruled that while it is within the
trial court's discretion to conduct post-conviction relief
hearings without the defendant being present, the trial
court's discretion must be exercised "with regard to the
prisoner's right to due process." Id., at 371 (citing Clark v.
State, 491 So. 2d 545, 546 (Fla. 1986)). Although in
Teffeteller this Court did not delineate any specific
standard or test for a trial court to follow in deciding
whether a defendant's presence was required under due
process, this Court found that the trial court erred in
excluding Mr. Teffeteller from portions of an evidentiary
hearing held on his 3.850 motion.
Like the Court's decisions in Teffeteller and Proffit, the
decisions of Florida courts dealing with the right of a
defendant to be present during an evidentiary hearing
appear to focus on the purpose of the hearing, whether the
hearing concerns facts within the defendant's personal
knowledge, and whether a defendant's presence would
assist in his own defense.
For this reason, courts have consistently determined that a
defendant's presence is required at a hearing in which
issues of ineffective assistance of counsel are presented.
In Smith v. State, 489 So. 2d 197 (Fla. 1st DCA 1986), the
District Court found that a defendant must be present at an
evidentiary hearing in which his trial attorney testifies
about communications between the attorney and the
defendant. Likewise, in Harrell v. State, 458 So. 2d 901 (Fla.
2d DCA 1984), the District Court found that a defendant
"must be afforded an opportunity to be present at [an
evidentiary] hearing to testify and cross-examine his
former counsel concerning his allegations that trial counsel
was ineffective." Id. at 902. See also Alfonso v. State, 319
So. 2d 49 (Fla. 2d DCA 1975); Eby v. State, 306 So. 2d 602
(Fla. 2d DCA 1975); Ulvano v. State, 479 So. 2d 809 (Fla. 3d
DCA 1985); Plute v. State, 528 So. 2d 1308 (Fla. 2d DCA 1988).
Contrasting these decisions are those determining that a
defendant's presence is not required when the purpose of
the hearing is to determine a wholly legal issue with facts
outside the realm of the defendant's knowledge. For
instance, in State v. Reynolds, 238 So. 2d 598 (Fla. 1970),
this Court determined that a defendant's presence is not
required if there is no prejudice to the defendant and the
defendant is not personally involved in the factual dispute
to be resolved. However, this Court recognized that only
competent counsel may serve as a substitute for the
defendant's presence. When a defendant is not
represented by counsel, this Court has held that his
presence is required at an evidentiary hearing regarding
issues of ineffective assistance of counsel. Clark v. State,
491 So. 2d 545 (Fla. 1986).
In Mr. Scott's case, Mr. Scott wanted the testimony of
George Barrs presented. He wanted the testimony of
Dexter Coffin presented. He wanted the testimony of
Robert Dixon presented. Mr. Scott has personal knowledge
of whether George Barrs had ever advised him that Dexter
Coffin or Robert Dixon had made statements exculpatory as
to Mr. Scott. In responding to Mr. Selvig's testimony that
exculpatory evidence was disclosed, Mr. Scott's presence
was necessary because the issue was, if Mr. Selvig's
testimony was true (a doubtful proposition to be sure) then
Mr. Barrs was ineffective in not investigating and
presenting the exculpatory evidence. Mr. Scott's presence
was critical not only in presenting relevant evidence, but
also in deciding how to proceed. Yet, Mr. Selvig, the State's
witness-advocate, manipulated the process to exclude Mr.
Scott and his counsel of five years, Mr. McClain.
It is clear that the situation in Mr. Scott's case is like that of
the defendants in Teffeteller, Proffit, Harrell, Smith,
Alphonso, Eby, Ulvano and Plute, and that his presence was
therefore required at the evidentiary hearing. This Court
remanded Mr. Scott's case to the Circuit Court for an
evidentiary hearing regarding Mr. Scott's claim that either
the State failed to disclose or the defense failed to
discover the following: "(1) a statement by Dexter Coffin, a
cellmate of Scott's codefendant Richard Kondian, in which
Coffin states he told a police officer that Kondian admitted
killing the victim; (2) a statement by Robert Dixon, in which
Dixon states he told a police officer that Kondian was angry
with Scott for running out on him at the murder scene; and
(3) a medical examiner's photograph that suggested that
Kondian had struck the fatal blow by hitting Alessi on the
head with a champagne bottle." Scott v. State, 657 So. 2d
1129, 1130 (Fla. 1995).
The issues to be determined at this evidentiary hearing
were directly related to facts which were within Mr. Scott's
personal knowledge, as they pertained to exculpatory
evidence which existed at the time of Mr. Scott's jury trial,
but not presented to the jury, either because the state
failed to disclose it or because defense counsel failed to
discover it. Consequently, it was necessary to have Mr.
Scott present in order for Mr. Scott to testify, assist in
cross-examination and to assist in his own defense.
Judge Mounts had already determined that due process
mandated Mr. Scott's presence at the evidentiary hearing.
On January 10, 1996, undersigned counsel filed a motion to
transport Mr. Scott to the evidentiary hearing, scheduled
for January 23, 1997. The motion stated that Mr. Scott's
presence was necessary in order to ensure his right to due
process, a full and fair hearing, and effective assistance of
counsel. (Supp PC. 13-14).
Accordingly, on January 12, 1996, Judge Mounts entered an
order directing the Department of Corrections to transfer
Mr. Scott to the Palm Beach County Jail, where he was to
remain until the completion of the evidentiary hearing. The
order specifically stated that "[t]he presence of Paul
William Scott is necessary at an evidentiary hearing
presently being conducted by the Court in this
proceeding." (PC-R. 1156).
Mr. Scott was in fact transported to and was present during
the portion of the evidentiary hearing which took place on
January 23, 1996. However, after it became apparent that
the hearing would take longer than one day, Judge Mounts
ordered that the remainder of the hearing should be set at
a future date. Sometime thereafter, Mr. Scott was
transported back to Union Correctional Institution.
On January 24, 1996, Ken Selvig set the remainder of the
evidentiary hearing in Mr. Scott's case for February 14,
1996. Mr. Selvig did this, despite specific knowledge that
undersigned counsel had another previously scheduled
hearing in Maryland on February 14, 1996, which would
prevent him from attending Mr. Scott's hearing. See
Argument III, supra. Despite repeated and diligent efforts
on the part of undersigned counsel to reset the hearing,
the trial court refused to continue it.
On February 14, 1996, Judge Mounts reconvened the
evidentiary hearing in Mr. Scott's case. Undersigned
counsel Martin J. McClain was unable to attend the
hearing, due to his litigation of the Maryland case.
However, because of Judge Mounts' refusal to continue
the hearing, Mr. McClain felt compelled to send Mary K.
Anderson Mills to appear on behalf of Mr. Scott.
At the beginning of the hearing, it was discovered that Mr.
Scott had not been transported to West Palm Beach from
Union Correctional Institution. Ms. Anderson Mills objected
to Mr. Scott not being present and asserted that he was not
waiving his rights in this regard. Ms. Anderson Mills also
made the court and opposing counsel aware that, due to
the court's failure to transport Mr. Scott to the hearing,
counsel had not been able to speak with him about the
issues in his case, or to inform him that he was not being
represented by competent counsel at the hearing.
However, the trial court ordered that the hearing proceed
in Mr. Scott's absence. Surely, Mr. Scott's presence could
have been no less necessary during the continuation of his
evidentiary hearing on February 14, 1996.
This exclusion of Mr. Scott from the February 14, 1996
evidentiary hearing was especially egregious in light of the
fact that he was not represented by competent counsel.
This Court recognized that only competent counsel may
serve as a substitute for the defendant's presence. When a
defendant is not represented by counsel, his presence is
required at an evidentiary hearing regarding issues of
ineffective assistance of counsel are being determined.
Clark v. State, 491 So. 2d 545 (Fla. 1986).
Failure to ensure Mr. Scott's presence at his evidentiary
hearing constituted a violation of Mr. Scott's rights to due
process and right to a full and fair hearing. Mr. Scott's case
must be remanded for an evidentiary hearing where he has
the opportunity to be present and assist in his own defense.
ARGUMENT V
JUDGE MOUNTS ABUSED HIS DISCRETION WHEN HE DENIED
MR. SCOTT'S REQUEST UNDER RULE 3.190(j) TO DEPOSE
DEXTER COFFIN AND ROBERT DIXON.
On November 14, 1995, the State, through Ken Selvig, filed
a pleading with the trial court in which he requested that
the Court set Mr. Scott's evidentiary hearing on or before
December 15, 1995. On November 17, 1995, Mr. Scott's
counsel was informed that the trial Court had indeed set
the hearing on December 15, 1995. At that time, Mr.
McClain, the lead counsel in Mr. Scott's case, was also lead
counsel on a case under an active death warrant, and was
unable to prepare adequately for Mr. Scott's hearing. See
White v. Singletary, 663 So. 2d 1324 (Fla. 1995) (Martin
McClain was lead counsel for Jerry White who was
executed on December 4, 1995).
Despite Mr. Scott's counsel's attempts to inform Judge
Mounts of these conflicts, he was informed through Judge
Mounts' judicial assistant that the December 14, 1995,
hearing would only be continued if the State were to agree
to such a continuance. Upon contacting Mr. Selvig
regarding his position on the continuance and informing
him of the situation, Mr. Scott's counsel was informed that
the State would agree on the condition that the hearing be
reset for sometime in January. Undersigned counsel had
little choice, with Mr. White's execution pending, but to
accept the State's conditions and agree to a January
hearing date.
Thereafter, Mr. Scott's counsel made every effort to
prepare for the presentation of their case. Obviously,
Dexter Coffin and Robert Dixon were material and
necessary witnesses to the determination of Mr. Scott's
Brady issues as both would have provided testimony
regarding statements made to law enforcement officials in
connection with Mr. Scott's case which were exculpatory
but never provided to Mr. Scott's counsel. However, the
locations of Dexter Coffin and Robert Dixon were not
immediately available to counsel or his investigator.
It was not until January of 1996 that counsel's investigator
located Dexter Coffin and Robert Dixon. At that time, it was
learned that both witnesses were outside the territorial
jurisdiction of the Court, as Dexter Coffin was then
incarcerated in the State of Virginia, and Robert Dixon was
then on parole in the State of California, with the condition
that he not leave the State. See Affidavit of Jeffrey Walsh
(PC-R. 1999-2001).
Immediately after locating these witnesses, Mr. Scott's
counsel attempted on January 11, 1996, to apprise the
Court of this situation and to take steps to ensure that the
testimony of these unavailable witnesses would be
preserved and presented at the hearing pursuant to Rule
3.190(j) of the Florida Rules of Criminal Procedure (PC-R.
1153-1155).
A hearing was, in fact, held regarding the afore-mentioned
motions on January 18, 1996. Ken Selvig, representing the
State, opposed both motions on the ground that he wanted
Mr. Dixon and Mr. Coffin present in Florida so that he could
then charge them with perjury. Mr. Selvig also asserted
that a "condition precedent" existed before the testimony
of these two witnesses, whom this Court mentioned
specifically in its opinion remanding Mr. Scott's case for an
evidentiary hearing, would be relevant (PC-TR. 1234-35).
That "condition," according to Mr. Selvig, was evidence
that the witnesses had given statements which were
withheld (PC-TR. 1234-35). Mr. Selvig thereafter proceeded
to explain his rationale for failing to disclose exculpatory
evidence to Mr. Scott's trial counsel and to assure the
Court that he had acted properly (PC-TR. 1236).
Pursuant to Rule 3.190(j) of the Florida Rules of Criminal
Procedure, Mr. Scott moved to take the depositions of
three unavailable witnesses. At the hearing on January 18,
1996, Judge Mounts denied this motion without
explanation. However, Judge Mounts had no discretion to
deny Mr. Scott's motion.
Rule 3.190(j) provides that in a criminal case, either party
may apply for an order to take depositions to perpetuate
testimony. The Rule provides that the application must
indicate that a prospective witness resides beyond the
jurisdiction of the court or may be unable to attend a trial or
hearing, that the witness's testimony is material, and that
the deposition is necessary to prevent a failure of justice. If
these requirements are met, the court has no discretion to
deny the motion: "The court shall order a commission to be
issued to take the deposition of the witnesses to be used
in the trial." (emphasis added)
Where the language of a statute is clear and unambiguous,
courts may not resort to rules of statutory construction;
rather, the statute must be given its plain and ordinary
meaning. Steinbrecher v. Better Construction Co., 587 So.
2d 492 (Fla. 1st DCA 1991). Florida precedent firmly
establishes that the plain meaning of "shall" indicates a
mandatory intent. Manatee County v. Train, 583 F.2d 179
(5th Cir. 1978); Drury v. Harding, 461 So. 2d 104 (Fla. 1984);
State v. Goodson, 403 So. 2d 1337 (Fla. 1981); S.R. v.State,
346 So. 2d 1018 (Fla. 1977); Neal v. Bryant, 149 So. 2d 529
(Fla. 1962).
In the absence of a convincing argument to the contrary,
courts are required to interpret "shall" as mandatory rather
than permissive. Manatee County, 583 F.2d at 182. Contrary
intent can be found in the wording of a statute, its
purposes, or its legislative history. Id.; State v. Goodson,
403 So. 2d at 1338. In Manatee County, the court noted that
the specific language of the statute in question (the
Federal Water Pollution Control Act) supported its
interpretation of "shall" as mandatory; Congress had used
"may" and "shall" within the same statute, revealing its
awareness of the difference and its intent to use "shall" to
connote its normal meaning: "The fact that . . . Congress
distinguished `shall' from `may' shows that . . . Congress
used `shall' in its everyday sense, as imposing a mandatory
duty." Id. In Goodson, this Court similarly looked at the
context in which the words "may" and "shall" are used to
determine whether the legislature intended courts to use
the normal meanings of those words. The law in question,
that governing a court's classification of youthful
offenders, provided both eligibility and disqualification
requirements. The statutory language indicates that if a
defendant meets the eligibility requirements, the court
"may" classify the person as a youthful offender. In
contrast, if a defendant meets the eligibility criteria and is
not disqualified by the statutory requirements, the court
"shall" classify the person as a youthful offender. This
Court concluded that "in this context the word `shall' is
clearly meant to be mandatory." Id. at 1339 (citing Barnhill v.
State, 393 So. 2d 557 (Fla. 4th DCA 1980); Killian v. State, 387
So. 2d 385 (Fla. 2d DCA 1980)).
In writing Rule 3.190(j), the drafters similarly used both the
permissive "may" and the mandatory "shall" indicating their
awareness of the difference and their intent that courts
use the normal meaning of "shall." The Rule provides that if
the statutory requirements are met, "[t]he court shall order
. . . the deposition" but that "[i]f the application is made
within ten days before the trial date, the court may deny the
application." The legislature clearly gave the circuit courts
discretion to deny motions under Rule 3.190(j) only when
the application is made within ten days of trial. In all other
situations, when the statutory requirements are met, the
court must grant the motion.
Florida courts have allowed a permissive interpretation of
"shall" in only limited circumstances, none of which apply
here. In Walker v. Bentley, 660 So. 2d 313 (Fla. 2d DCA
1995), the court interpreted a statute limiting the court's
right to enforce domestic violence injunctions. The court
found that interpreting "shall" as mandatory in that case
would render the statute unconstitutional as a violation of
the separation of powers. The court noted that the case
required a balancing of two basic principles of statutory
interpretation: the presumption that the legislature
intended to enact a constitutional statute and the court's
duty to give effect to clear legislative intent as expressed
in statutory language. The court concluded that "when the
legislature used the word `shall' in prescribing the action of
a court in a field of operation where the legislature has no
authority to act, the word is to be interpreted as permissive
or directory, rather than mandatory." Id. at 320-21. The court
interpreted "shall" to be permissive only to save the
statute in question from being rendered unconstitutional.
The narrow holding of Walker has no effect here where the
legislature was clearly acting within its authority in passing
Rule 3.190.
In Neal v. Bryant, 149 So. 2d 529 (Fla. 1962), this Court
considered a rule requiring the Board of Education to
conduct an investigation before revoking a teaching
certificate and held that "shall" must be interpreted
according to its ordinary meaning and the investigation
provisions are therefore mandatory. This Court had earlier
recognized a narrow exception to the mandatory meaning
of "shall" which did not apply in Neal:
When a particular provision of a statute relates to some
immaterial matter, where compliance is a matter of
convenience rather than substance, or where the
directions of a statute are given with a view to the proper,
orderly, and prompt conduct of business merely, the
provision may generally be regarded as directory.
Id. at 532 (quoting Reid v. Southern Development Co., 42
So. 206 (Fla. 1949)). Clearly, the Rule at issue here does not
fall within this exception. The purpose of the Rule is to
allow the presentation of material testimony in a criminal
trial or hearing when that testimony would otherwise be
unavailable due to the witness's residence outside the
jurisdiction. The Rule protects the fundamental right of
criminal defendants to present evidence in their defense
and cannot be described as concerned with "the proper,
orderly, and prompt conduct of business."
In further support of Mr. Scott's argument are cases in
which courts have interpreted "may" as mandatory based
on the purpose of the statute in question. In Allied Fidelity
Ins. Co. v. State, 415 So. 2d 109, 111 (Fla. 3d DCA 1982), the
court held that "the permissive `may' will be deemed to be
obligatory `[w]here the statute directs the doing of a thing
for the sake of justice." (quoting Mitchell v. Duncan, 7 Fla.
13 (1857)). In Comcoa, Inc. v. Coe, 587 So. 2d 474 (Fla. 3d
DCA 1991), the petitioner sought a writ of mandamus in
circuit court directing the county court judge to issue a writ
a replevin without notice. The circuit court denied the
petition on the ground that issuance of the writ was a
discretionary act, but the district court of appeal held that
the legislature's use of "may" can sometimes be mandatory
if there is no basis on which the court could properly
exercise its discretion. The court found that the statute fell
within that category of cases in which mandatory
construction was necessary to protect the petitioner's
rights:
an imperative obligation is sometimes regarded as imposed
by a statutory provision notwithstanding that it is couched
in permissive, directory, or enabling language. Thus where
a statute says a thing that is for the public benefit "may" be
done by a public official, the courts may construe it to mean
that it must be done. Permissive words in a statute
respecting courts or officers are said to be imperatives in
those cases where the individuals affected have a right
that the power conferred be exercised.
Id. at 477 (quoting 49 Fla.Jur.2d Statutes §18 (1984)).
Judge Mounts' ruling violated the rule and deprived Mr.
Scott of any means of obtaining the evidence to support his
claim. Mr. Scott was deprived of due process, compulsory
process, and a full and fair hearing. The matter must be
reversed and remanded.
ARGUMENT VI
JUDGE MOUNTS IMPROPERLY OVERRULED THIS COURT
WHEN, IN DISREGARD OF THE OPINION REMANDING FOR AN
EVIDENTIARY HEARING, HE EXCLUDED AND REFUSED TO
LET MR. SCOTT PRESENT THE EVIDENCE OF WHICH THIS
COURT HAD HELD AN EVIDENTIARY HEARING WAS
REQUIRED.
Once he had made sure that Mr. Scott would not receive
adequate representation at his evidentiary hearing, Mr.
Selvig set out to urge the trial court to exclude all evidence
and testimony which Mr. Scott intended to present in
support of his claims. On January 31, 1996, the state filed a
Motion To Preclude Testimony of any of Mr. Scott's
witnesses, including Dr. Cuevas and Dale Nute, whose
testimony had been proffered to this Court when this Court
ruled that an evidentiary hearing was required. The state
claimed that the testimony of these witnesses was now
irrelevant, as Ken Selvig had testified that he had in fact
disclosed the material in question. By excluding this
evidence, Mr. Selvig ensured that no testimony contrary to
his assertion that all evidence had been provided to Mr.
Scott' defense counsel would be heard by the court
assessing Mr. Scott's claims.
In his motion, Mr. Selvig urges Judge Mounts to preclude
the testimony of all defense witnesses who, according to
witness-advocate Mr. Selvig, would provide testimony
regarding the "materiality" prong of Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L.Ed. 2d 215 (1963), based on the
State's assertion that "the record is indisputable that the
picture of the bloody circle was made known to Scott
before trial." See Motion to Preclude Testimony of
Witnesses, at page 2. Mr. Selvig's argument completely
ignored Mr. Scott's contention that if Mr. Barrs had been
apprised of the existence of the photograph, then he was
ineffective in failing to understand its significance and
present it.
This Court remanded Mr. Scott's case for an evidentiary
hearing to determine whether Brady violations occurred
during the course of Mr. Scott's trial. In its opinion, this
Court referred to the following matters which were to be
the subject of the Brady inquiry: (1) a statement by Dexter
Coffin, a cellmate of Scott's codefendant Richard Kondian,
in which Coffin states he told a police officer that Kondian
admitted killing the victim; (2) a statement by Robert Dixon,
in which Dixon states he told a police officer that Kondian
was angry with Scott for running out on him at the murder
scene; (3) a medical examiner's photograph that suggested
that Kondian had struck the fatal blow by hitting Alessi on
the head with a champagne bottle.
This Court did not intend for the Brady inquiry to be
narrowly restricted to whether the photograph of the
bloody circle was made available to defense counsel, as
the State's motion suggests. The photograph of the bloody
circle was but one piece of the puzzle that made up Mr.
Scott's case, and was, therefore, intricately connected to
the other pieces of the puzzle. The testimony of Dr. Cuevas
and Dale Nute would have been instrumental in putting
those pieces together, as this Court's opinion ordering the
evidentiary hearing recognized. Their testimony not only
was directly relevant to the issue of whether the bloody
ring photograph was made available to the defense, but
also would have corroborated Mr. Scott's arguments as to
the other issues which this Court ordered to be considered
on remand. Judge Mounts should have viewed the entire
puzzle before making his decision regarding the Brady
issues. That Mr. Selvig did not want Judge Mounts to know
the rest of the story is disturbing.
Even more disturbing was Mr. Selvig's insistence to Judge
Mounts that he should rely exclusively on the incomplete
testimony of Mr. Selvig, himself, in making its determination
as to whether the photograph of the bloody ring was given
to defense counsel. Mr. Selvig asserted that because Ken
Selvig has testified that he disclosed the photograph in
question to the defense, "the record is indisputable that
the picture of the bloody circle was made known to Scott
before trial." See Motion to Preclude Testimony of
Witnesses, at page 2.
Clearly, this Court did not feel the issue of the bloody circle
photograph and its disclosure to defense counsel was
"undisputable," as it remanded this case for an evidentiary
hearing. Certainly, this Court did not intend for Judge
Mounts to base his decision on the issue of the disclosure
of the circle of blood solely on the testimony of Mr. Selvig,
the individual who has the most to lose by a determination
that he failed to disclose this evidence. The determination
by Judge Mounts based on Ken Selvig's testimony alone
was a mockery of justice and deprived Mr. Scott of his
rights to a full and fair hearing. The State's position to the
contrary is simply absurd, and violates this Court's order
remanding the case for a full evidentiary hearing on Mr.
Scott's allegations.
In Johnson v. Singletary, 647 So. 2d 106 (Fla. 1994), the
defendant appealed the denial of his motion for a new trial,
and this Court remanded for an evidentiary hearing on his
newly discovered evidence claim. Mr. Johnson's claim was
based on four affidavits stating that another prisoner had
confessed to the crime for which Mr. Johnson was
convicted and sentenced to death. In 3.850 proceedings,
the trial court had accepted evidence from the State
purporting to show that the man named in the affidavits did
not match the eyewitness description of the perpetrator
given at the trial; however, the court refused to consider
evidence Mr. Johnson offered as corroboration of the
affidavits. This Court reversed, ruling that allowing the
State to present evidence regarding the unreliability of Mr.
Johnson's evidence, without providing him a reciprocal
opportunity to present evidence corroborating his
affidavits violated his due process rights. The Court noted
that "[u]nder these circumstances, it is difficult to see why
Johnson should have been precluded from also putting on
evidence." Id. at 111 n. 3.
Justice Overton in his concurring opinion noted that Mr.
Johnson must be given an opportunity to present evidence
corroborating the affidavits; he explained: "This is
especially true given that the trial court allowed the State
to present evidence that the affidavits were unreliable but
did not afford Johnson the same evidentiary hearing
opportunity." Id. at 111. Justice Kogan, also concurring,
agreed that "[s]ince the trial court effectively had
commenced an evidentiary hearing, it was obligated to
grant Johnson's request to present testimony of his own in
rebuttal." Id. at 112.
This Court's decision in Johnson confirms that accepting
evidence from one party while denying a reciprocal
opportunity to the other denies that party's due process
right to a fair hearing. That is what occurred here.
Judge Mounts could not properly make a determination of
the admissibility or relevance of defense witnesses based
on conjecture by Mr. Selvig regarding their testimony. By
its own words, Mr. Selvig "can only speculate" as to the
testimony of defense witnesses. Mr. Selvig's argument was
that if the witnesses' testimony did not match his then it
was wrong and should not be considered. Any decision
based on these assertions by Mr. Selvig was improper.
Mr. Selvig's motion was further evidence of the enormous
conflict created when the individual representing the State
in a post-conviction hearing is also a substantive witness
in a key issue for determination. Judge Mounts entertained
and granted a motion from a key and extremely biased
witness in Mr. Scott's case, excluding all other witnesses
from its consideration of a central issue. This situation
emphasizes the inappropriateness of the failure to
disqualify Ken Selvig from further representation of the
State in this case.
Judge Mounts' exclusion of Mr. Scott's evidence violated
this Court's opinion remanding for an evidentiary hearing. It
also violated due process and deprived Mr. Scott of a full
and fair hearing.
CONCLUSION
Based upon the record and the arguments presented
herein, Mr. Scott respectfully urges the Court to reverse
the lower court's order and remand Mr. Scott's case to the
circuit court with direction that Mr. Scott receive a full and
fair evidentiary hearing, and vacate his unconstitutional
convictions and sentences. Mr. Scott respectfully requests
that this Court order that the Honorable Marvin U. Mounts,
and Ken Selvig, Assistant State Attorney be disqualified
from any further prosecution of Mr. Scott's case.
I HEREBY CERTIFY that a true copy of the foregoing brief
has been furnished by United States Mail, first class
postage prepaid, to all counsel of record on June 2, 1997.
MARTIN J. MCCLAIN
Florida Bar No. 0754773
Litigation Director
Post Office Drawer 5498
Tallahassee, FL 32314-5498
(904) 487-4376
Attorney for Appellant
Copies furnished to:
Celia Terenzio
Assistant Attorney General
1655 Palm Beach Lakes Boulevard, 3rd Floor
West Palm Beach, Florida 33401-2299
By Grant Balfour & Steve Ellman
Florida had a great big Coming Out Ball around the turn of
the millennium. The party favors were butterfly ballots and
anthrax-laced love letters, the guest of honor was an eight-
year-old Cuban boy riding a magical dolphin, and Florida
was officially crowned the new Queen of Scandal.
Look at our demographics. Nine hundred people a day
move into Florida, and those numbers are heavily skewed
in favor of petty crooks, drug lords, serial killers,
Kennedys, war criminals, Rhesus monkeys, visionary
philanthropists, despots, terrorists, and the ex-wives of
Donald Trump. We're the only state in the union with a
whole townful of psychics (See *Cassadaga). Then there's
the weird shit-UFOs, shark attacks, O.J. Simpson, the
Bermuda triangle, and roadblocks that mysteriously
materialize on election day. Credit our geography: We're a
peninsula and a subtropical swamp. Both of those
conditions lend themselves to the formation of what
anthropologists call "isolate communities." And both also
make Florida a useful gateway to the US for countries
further south. People tend to forget that the beach is also a
frontier.
Throughout history, here's where people have run to when
they've got to get away from someplace or someone else;
in fact, the name "Seminole" probably comes from the
Spanish word "Cimarron," meaning "runaway." The first
white settlers in Palm Beach-who built neighboring shacks
down by the Palm Beach inlet--were a couple of
Confederate soldiers gone AWOL. Because people have
run away here for so long--escaping slavery, or the English,
or the Law, or Castro, or Duvalier, or maybe just trying to
outrun old age and the ravages of northern winters--we've
got a bizarre cross-section of humanity. At any given South
Florida bar, you could watch a Voodoo torturer from the
Ton-Ton Macoute rubbing elbows with a retired accountant
from the Chicago mob sitting next to a fifth-generation frog-
gigger and dope smuggler, getting served drinks by a gay
Cuban painter and a German runway model wanted for
credit fraud in Europe. And those are just the folks no one
pays attention to because they're the regulars. Every now
and again, a *real* character shows up.
"I doubt that any other state has as many residents who
refer to the place they moved from as 'back home,' says
David McCalley, assistant professor of history at the
University of Florida. "For whatever reason, people can
live in Florida for years, even decades, without adopting it
as home. People who find their sense of place 'back home'
confining feel more free to move somewhere new--and that
somewhere new is quite often Florida."
It's that same sense of imperial possibility that California
once offered. There is no "there" here, and we like it that
way. It's what has set Floridians free to act on the most
outrageous dreams and schemes imaginable, from our days
as a pirate haven in colonial times, to slaves and outlaws
on the run in the 19th century, to megalomaniacal
development schemes post-WW II, when the interstate
highway system and the ubiquity of air conditioning opened
the floodgates to refugees from the North and Midwest.
Those nouveau Floridians drained the swamps, manicured
the landscape, and rode off, in their Lexii and golf carts,
into the newly tamed wilderness of their imaginations.
This month, CLOSER offers our custom map of the Sunshine
State, in all its glorious folly. Happy trails.
Little Killers
A spate of little killers have been tried as adults in South
Florida courts lately, beginning with 13-year-old Tronneal
Mangum, who was slapped with a life sentence for shooting
Conniston Middle School seventh-grader John Kamel
during an argument over a wristwatch in 1997. Joining him
is Lionel Tate; Tate was 12 when he beat six-year-old Tiffany
Eunick to death in his home in Pembroke Park. He was
sentenced to life imprisonment without parole. Then
thirteen-year-old Nathaniel Brazill made national headlines
when he shot his language arts teacher, Barry Grunow, with
a .25 caliber Raven in May 2001. He received a 22-year
sentence. The Brazill murder was only the most sensational
of a string of Palm Beach County middle and high school
shootings dating back to 1994.
Pensacola Parricide
Pensacola is ordinarily a quiet little city--so far west it's
more Alabama than Florida. Most of the locals devote
themselves to prayer (it's a hotbed of fundamentalist
Christian belief, and home to the Creation Science
Evangelism ministry, "Where God and the Dinosaurs Meet")
or military order (it's home to the Pensacola Naval Air
Station, the "Cradle of Naval Aviation"). Imagine the shock,
then, when it was discovered last year that two young local
boys, Alex and Derek King, ages 12 and 13 respectively,
had taken a baseball bat to the head of their father and
done away with him. Imagine the further shock when it was
found that Alex had been involved in a passionate affair
with a male,
40-something acquaintance of dad's, and that the boys had
taken refuge with sugar daddy in the crime's aftermath. The
local state's attorney found it all so befuddling he charged
the boys in one trial and the c'hawk in another, offering two
different theories of the crime to the two juries.
Confounding all expectations, the c'hawk walked (though
he'll be back in court on charges of lewd and lascivious and
evidence tampering) and the boys are looking at 22 to life.
Justice is blind, especially in the Sunshine State.
Ballot Box Boogie
Yes, the butterfly ballot and the legal wrangling in the
election's aftermath were a fright, and made Florida a
byword for electoral bumbling. But the most bizarre--and
most frightening, and instructive--moment in the whole
convoluted story had to be the Blue Blazer Riot, the
Republican attack on the Miami-Dade canvassing board.
For one afternoon of shocking clarity, the essentially
fascist impulse at the heart of the party of "compassionate
conservatism" stood naked for all to see.
On the afternoon of November 22, 2000, as the canvassing
board prepared to do a hand count of 10,000 "undervotes"
-- ballots on which voting machines had been unable to
detect a vote for president--and while an angry crowd of
mostly Cuban Americans provided a lynch mob backdrop in
the streets outside, an elite strike force of congressional
aides from the offices of Tom "Hammer" DeLay and Trent
"Blowdry" Lott, among other GOP leaders, stormed the
counting room itself, pounding on windows and furniture
and, according to the New York Times, "trampled, punched
or kicked" government workers until they did, as instructed
by New York Republican congressman John Sweeney,
directing operations from outside the building, "shut it
down." Ten thousand ballots went unexamined, Dubya won
by a mere 537 votes.
Imagine a political mob storming a government building and
forcing a halt to the machinery of democracy in any other
city in the U.S. Go figure. Just don't do it in Miami.
Primary Colors
How do I flub thee? Let me count the ways. And if it's
Florida elections we're talking about, the number seems
limitless. Governor Jeb Bush had promised to overhaul the
system in time for the 2002 primary elections and save the
state the embarrassment of repeating the 2000 disaster.
The state invested $32 million in ridding the counties of the
troublesome punch-card ballots and replacing them with
touch-screen voting machines. The net result? Equipment
failures and human error produced enough confusion to
cause some polls to open late, others to close early, and
countless voters to give up in disgust on the chance to
cast ballots. The Democratic gubernatorial primary was
close enough, as luck would have it, that the uncast ballots
may have been enough to swing the decision away from
Tampa lawyer Bill McBride and over to former U.S. Attorney
General Janet Reno. The lady had the grace to concede,
however. As for the Jebster, he promised to make it all
good come November, suggesting that Brother Dubya's
Department of Justice oversee that race, preventing any
possible glitches in Jeb's contest with McBride. Some
observers felt those rules were more suitable to the World
Wrestling Federation than to an electoral exercise. But this
is Florida.
To Live and Die in Boca
Maggot Mile
With the possible exception of Beverly Hills, this city of
gated communities and opulent country clubs must be
home to more scam per capita than any other place on
earth. Maybe it's the classy tones of the city's name as it
rolls off the tongue. Notorious as the address of choice for
high-pressure securities salesmen, so many of whose
boiler room operations bloomed on the city's Federal
Highway through the long stock market boom of the '90s
the strip was dubbed "Maggot Mile" by securities
attorneys. Often enough, the salesmen were bankrolled by
organized crime.
Leading lights in the recent Boca catalogue of white collar
crime include:
* April 2000: 40 employees of Meyers Pollock Robbins are
charged with promoting worthless stock, costing 16,000
investors more than $83 million. The brokerage's staff
includes many past grand jury targets, among them some
salesmen who took bribes from mobsters to promote and
inflate the price of specific stocks.
* March 2001: Frederick Buckley is indicted for tax evasion
in connection with the operations of Innovative Telemedia,
which convinced thousands of investors they could get
rich quick through the leasing of fraudulent 900-number
telephone lines.
* January 2002: William Caudell is sentenced for his role in
Professional Resource Systems International, an Internet
pyramid scheme that ripped off about 48,000 people, chiefly
mom-and-pop business operators, for an estimated $13
million, charging them $295 apiece for space in a
nonexistent Internet shopping mall.
* August/September 2002: "Chainsaw Al" Dunlap--
nicknamed for his brutal cost-cutting and job eliminations--
a corporate chieftain formerly worshipped as a paragon of
tough-minded capitalist virtue, has to fork over $15 million
to settle securities fraud claims brought by shareholders of
Boca's Sunbeam Corporation. Turns out at least $60 million
of the appliance maker's profits under Dunlap involved
fraud. Dunlap pays another $1/2 million to settle SEC
charges. No sweat off the slasher's brow, though--he
cleared a cool $100 million during his reign of Boca-based
Scott Paper. Pending further investigation, of course.
Two of Boca's most successful corporate crooks had the
good taste to use the city only for rest and recreation,
doing their looting and pillaging elsewhere.
* The completion of former WorldCom chief financial officer
Scott Sullivan's $15 million estate on four acres of western
Boca has taken so long to complete the neighbors have
complained. Now under indictment for his role in the
bankrupt telecom giant's overstating of $3.8 billion in
earnings, Sullivan may never get to enjoy the 24,000-
square-foot mansion's swimming pool, cabana and two-
story boat house. Maybe he can rent out the 18-seat movie
theater to raise bail.
* Also now under indictment is fellow part-time Boca
resident Dennis Kozlowski, currently free on $10 million
bail. Big D orchestrated the looting of conglomerate Tyco
International to the tune of nearly $600 million, a mere $30
mill of which went toward the purchase of his Boca estate.
It is unclear which, if any, of the following widely-reported
Kozlowski extravagances are found there: a $15,000
umbrella stand, a $6,300 sewing basket, a $17,000 "traveling
toilette box," a $2,200 wastebasket, a set of coathangers for
$2,900, two sets of sheets for $5,900 and a $1,650
appointment book.
Tabloid Anthrax
Another Boca affair that, if offered up in a Hollywood pitch
session, would have immediately been tossed as simply too
unbelievable. Two versions: A love letter directed to
Jennifer Lopez arrives at the offices of the world's leading
publisher of tabloid newspapers, American Media. The
letter contains a powdery, soapy substance and a Star of
David charm. Or, somebody simply dumps a pile of anthrax
near the mailroom floor, and Bob Stevens, an unsuspecting
photo editor, walks through it, dragging the stuff all over
the newly refurbished-to the tune of millions of dollars--
building. In any case, Stevens is soon dead of the
legendarily awful disease, others fall ill, and the fancy digs
are vacated for hastily cramped together offices in nearby
quarters. Within weeks, similar outbreaks of the disease
happen elsewhere, locally and nationally. But the original
panic--hundreds of tabloid journalists and their families
gathered for inspection and inoculation at an understaffed
county health clinic, with a mob of as-yet-uninfected
journalists swarming around the event--had to be Palm
Beach County's.
In a weird coincidence, 9/11 hijacker Mohammed Atta and
members of his team rented an apartment in Boca Raton.
The real estate agent who found the place for them? She's
married to the Sun's editor-in-chief.
Pass The Chips?
Even when Boca became the scene of a supposed advance
in human welfare, it turned into a full-blown media circus
and, as it happened, a stock market manipulation stunt. The
"chipping" last February of the Jacobs family--a West Boca
nuclear threesome who volunteered to have microchips
implanted in their bodies, for retrieval of medical records in
the event of an emergency--made the "Today" show, which
broadcast the procedure live. It also drew the attention of
the financial press, which probed deeper than the
physicians and discovered that the chip's manufacturer--
West Palm Beach's Applied Digital Systems--had some
serious cash flow problems and that the company's
executives had stock options about to expire. Nothing like
a few headlines to drive up the price and let the big boys
cash in. The chips? ADS was making out better selling them
in South America, where Big Brother could quietly put the
little devices to more nefarious use.
Elianismo
The only-in-Florida story of all time centered on a six-year-
old boy pulled out of the sea in November 1999 and
returned home to Cuba in June of 2000. Elian Gonzalez was
caught up in a political uproar that could have happened no
where else, thanks to the good sense of Miami's Cuban
exile community and its 40 years' worth of brooding
resentment. Not only did this kid have the bad luck to lose
his mother when the raft on which they fled Castro sank, he
ended up in the hands of a band of crackpot relatives and
glory-mongers who tried to transform him into an amulet of
anti-Communism and a sure shot for world fame.
There is hardly time or space to go into the conniving of
politicians local and national in the affair, so consider only
Elian's situation in the bosom of the family, among them:
Uncle Lazaro--Housebound when the last of his drunken
driving convictions left him without a license, thus unable
to drive his daughter Marisleysis to the hospital for her
recurring episodes of "nervous exhaustion." No doubt the
tyke felt safe in the care of cousins Luis and Jose, sterling
young men with, as England's BBC summarized it, "long
criminal records involving assault, theft and firearms." That
it took the authorities seven months to return the boy to
his father is as good a measure as we have of the
perversity of Florida's political and social landscape.
A Taste of Palm Beach
Now known for old money and upper-crust attitudes, most
of the mansions in this millionaires' resort were built by
visionary weirdo Addison Mizner. In his heyday in the 20s,
the eccentric architect was known for his own medieval
home (complete with portcullis and trapdoors for dropping
boiling oil on unwanted callers) and his constant
companion Johnny Brown, the Human Monkey. Perceptive
strollers along Worth Avenue may have noticed Johnny
Brown's grave, tucked into a corner of Via Mizner. It's the
only grave in Palm Beach--there are no cemeteries or
funeral homes.
It was here, in 1990, that William Kennedy Smith was
unsuccessfully charged with raping a woman on the
grounds of his family's historic estate. Conservative
commentator Rush Limbaugh bought a house down the
block... then another, and another, and another. Now he's
got his own oceanfront compound, and has been known to
broadcast shows from his Palm Beach living room.
Just down the street from the old Kennedy place, Palm
Beach businessman Richard Kreusler was blown away one
night in 1976 by three shotgun blasts when he answered
his doorbell. Mark Herman, a Riviera Beach n'er-do-well,
took the fall and did 14 years in prison for the killing, which
nobody now believes he committed. Kruesler had spent
time on sugar baron Alphonso Fanjul's fishing yacht the day
before; two of Fanjul's sons had purchased shotguns that
same day. Maybe Kruesler saw something on the fishing
expedition he shouldn't have. Or, it may have been a simple
botch job: a well known peg-legged drug dealer with an evil
temper lived next door-Kruesler may have taken the blast
meant for the doper. Or better yet, it might have been
Kruesler's stripper girlfriend's jealous ex who had him
whacked. The case even drew in millionaire Palm Beach
con artist Dexter Coffin III, who testified against Herman in
exchange for a sweet deal to lighten his own sentence for
the bogus sale of somebody else's yacht. Kreusler's murder
has never been resolved.
Mass Murder
The largest mass murder in Palm Beach County history was
committed in the small hours of September 22nd last
month, when Michael Roman gunned down an entire Lake
Worth family of five, including a young pregnant woman, in
revenge for what he claimed was the sexual abuse of his
toddler daughter and six-year-old step-daughter. Roman,
his girlfriend and their daughters had been staying with 52-
year-old Ismael Gomez and his family at 529 S. H Street;
Roman left a note the day before the slaying saying he was
moving to Miami. Neighbors discovered the body of
Gomez's common-law wife lying dead in the street at a
nearby intersection. When repeated calls to the house
failed to rouse anyone, family members checked the yard
and discovered Gomez's body under a tarp in his car.
Police later found the other three victims slain inside the
house. Roman's full taped confession was obtained on
Wednesday. He showed no remorse, claiming his daughters
had been sexually abused by the male members of the
Gomez family. "It doesn't matter if I found them in hell.
Wherever I found them, if I need to kill them again, I will,"
Roman said in a taped interview.
Sullivan's Folly
For sheer greed and chutzpa, few stories can top the 15-
year saga of Palm Beach murderer James Vincent Sullivan,
who allegedly had his estranged wife Lita whacked in 1987
when she opened the door of her Atlanta townhouse to
accept delivery of 12 long-stem pink roses. The case was a
four-star entry into the annals of Palm Beach gore: Sullivan
paid a North Carolina trucker $25,000 to do the dirty deed
on the very day the couple's divorce hearing was to
proceed; that same night Sullivan was spotted scarfing up
champagne and caviar at Jo's, a ritzy Palm Beach eatery,
with his new squeeze, Korean beauty Suki Rodgers, the
wife of one of his best friends.
Lita was Sullivan's second wife, and wouldn't be his last.
Sullivan inherited his fortune from an uncle, in the form of a
thriving Macon Georgia beverage distributorship. Despite
his put-on tony Boston accent, and a lavish lifestyle that
included a convertible Rolls Royce Cornishe and a $4
million Ocean Drive estate, Sullivan was notoriously cheap.
According to court testimony he forced Lita Sullivan to
manage their Palm Beach mansion on $300 a week, and he
wore World War II Army-issue underwear he'd inherited
from his uncle. Lita's parents claimed their daughter had
polished up her husband' image considerably: when they
met in 1975-she was 22 and he 34--Sullivan was wearing red
polyester slacks and black horn-rimmed glasses, not
exactly the presentational style that would win him entry
into Palm Beach's poshest circles. But he was already
desperately trying to erase his blue-collar background with
fantastic tales, telling people he was an heir to the Hearst
newspaper fortune.
The couple's entry into those notoriously clubby Palm
Beach circles was far from assured. Lita was black. She was
from a politically influential Atlanta family-her mother was a
state legislator--and she'd graduated on the Dean's list at
Spelman College with a bachelor's degree in political
science. Lita had met Sullivan while she was managing a
Macon boutique, and they were married in 1976. After their
move to Palm Beach, Sullivan yearned to join the swankest
clubs on the island, and to sit on its most prestigious
boards. But despite her education and social credentials,
Lita was shunned because of her color. As one Palm Beach
neighbor who occasionally dined with the Sullivans, Lois
Terry, put it, "There is still that feeling here that it's alright if
your gardener's black. But you're not going to invite him
over for cocktails."
Feeling marginalized, and increasingly estranged from her
husband, who had started to romance Suki Rogers, Lita
packed her possessions in a U-Haul and fled back to
Atlanta. The divorce proceedings she filed subsequently
probably spelled her doom. She wanted half of Sullivan's
property, the Atlanta townhome, and the silver Mercedes
coup. He didn't want her to have anything.
Eight months after Lita was killed, Sullivan married Suki. But
they split in 1990 after yet another sensational Palm Beach
divorce trial-during which Suki testified that Sullivan had
threatened to have her taken out, too, and that she was
"deathly afraid" of him. After Lita's parents won a wrongful
death civil suit against Sullivan, he fled the country,
eventually ending up in Thailand. The trail finally ended
when Sullivan, who was on the FBI's Ten Most Wanted List,
was discovered living in a condo at a beach resort
community outside Bangkok, where he'd hidden for four
years with yet another woman, Chongwattana
Sricharoenmuang, a Thai native and Palm Beach divorcee.
In May 2002, a fan watching "America's Most Wanted" in
Thailand turned in the tip on Sullivan's whereabouts.
Hearing of his pending extradition, Suki's lawyer Ronnie
Sayles commented, "It couldn't happen to a more evil
person. He is one of the most evil people around."
Sullivan is awaiting extradition in a Thai prison. Phillip
Anthony Harwood, the alleged hit man, was arrested in April
1998 and is currently on trial in Atlanta for murder.
Prosecutors are seeking the death penalty for Harwood.
More worst of the worst
* Floyd Holzapfel was convicted of kidnapping and killing
popular Judge Curtis Chillingworth and his wife, Marjorie,
after midnight June 15, 1955. Chillingworth, the youngest
circuit judge in Florida history, had learned that municipal
judge Joe Peel was on the take; Peel hired Holzapfel for
$2500 to kidnap the Chillingworths and dump them from a
small motorboat into the Gulf Stream. The couple reportedly
held hands and exchanged "I Love Yous" before being
tossed into the waves to their deaths. The case was solved
five years later.
* "Shallow, self-centered, self-pitying scum," was the
character summary a judge offered of Robert Messer, who,
in 1995 with his cohorts Chris Caballero and Isac Brown,
abducted Denise O'Neil-a beloved, Oxford educated
waitress at Charley's Crab in Palm Beach who planned to
become a teacher--and stood by as she was brutally
tortured, raped and murdered in their West Palm Beach
apartment. The trio, neighbors in O'Neil's apartment
complex, later dumped her body, wrapped in a pink sheet,
into a Broward canal. Police linked Caballero to the murder
in part because he feverishly courted the limelight. As TV
news crews roamed the apartment complex interviewing
O'Neil's neighbors, Caballero repeatedly buttonholed
reporters to express his horror and fear, saying news of
the murder had left him "breathless." Bobbie Conklin, a
volunteer with the West Palm Beach police missing
persons unit, saw Caballero on TV and smelled a rat. ``I
thought it was odd,'' she was reported saying. ``It just
seemed like every time you turned around, he's jumping in
front of the camera." Caballaro was sentenced to death and
Brown to life in prison.
* In June 1996, Geraldine Pucillo, a 71-year-old
grandmother, was murdered by Kim Cain, a 32-year-old pest-
control worker from Palm Springs. Pucillo and her late
husband Gus had been the proprietors of what was long
the most glamorous restaurant on the island, Petite
Marmite, frequented by celebs as diverse as John Lennon
and Richard Nixon. Cain was convicted of entering Pucillo's
home and strangling her with her dress. He is serving a life
sentence.
Inheriting Values
Kozusko Harris Vetter Wareh LLP
William K. Vanderbilt
“Inherited wealth is a big handicap to happiness. It is as
certain death to ambition as cocaine is to morality.”
Dexter D. Coffin III
“If I had not known there would always be money, I would
have done something more constructive with my life.”
Curtis L. Carlson
“There’s nothing people like me worry about more” how the
hell do we keep our money from destroying our kids? I
know one extremely wealthy Minnesota family that has 63
heirs in the fourth generation, and none is gainfully
employed. I think that’s terrible.”
Warren Buffet
Warren Buffett has expressed clear views on the topic of
inherited wealth, such as in a Fortune article in 1986
(September 29, 1986 at p. 18) that focused entirely on the
question: “ Should I Leave it All to the Children? ” The
cover of the magazine gave Mr. Buffett’s emphatic “ no ”
for an answer, and the article stated:
Buffett is not cutting his children out of his fortune
because they are wastrels or wantons or refuse to go into
the family business - the traditional reasons rich parents
withhold money. Says he:
“ My kids are going to carve out their own place in this
world, and they know I’m for them whatever they want to
do.” But he believes that setting up his heirs with “ a
lifetime supply of food stamps just because they came out
of the right womb ” can be “ harmful ” for them and is “an
antisocial act.” To him the perfect amount to leave
children is “enough money so that they would feel they
could do anything, but not so much that they could do
nothing.” For a college graduate, Buffett reckons “a few
hundred thousand dollars ” sounds about right.
Further Trouble
Dexter Drake Coffin, Iii, Plaintiff-appellant, v. Edward W.
Murray, Thomas R. Israel, Kurt Fox, Robert W. Fry,m.d., L.
Milton Baum, D.d.s., Defendants-appellees
United States Court of Appeals, Fourth Circuit. - 846 F.2d
70Unpublished Disposition
Submitted March 30, 1988.Decided April 29, 1988
Dexter Drake Coffin, III, appellant pro se.
Nelson H.C. Fisher, Office of Attorney General of Virginia,
Robert Sidney Brewbaker, Jr., Browder, Russell, Morris &
Butcher, for appellees.
Before ERVIN and CHAPMAN, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
PER CURIAM:
1
A review of the record and the district court's opinion
accepting in part and rejecting in part the recommendation
of the magistrate discloses that this appeal from its order
refusing relief under 42 U.S.C. Sec. 1983 is without merit.
Because the dispositive issues recently have been
decided authoritatively, we dispense with oral argument
and affirm the judgment below on the the district court's
reasoning that defendants were not deliberately indifferent
to plaintiff's serious medical needs. Coffin v. Murray, C/A
No. 87-75-H (W.D.Va. Dec. 2, 1987).
2
AFFIRMED.
I worked with Dexter at American Yacht sales in 1972 as an
associate. We used to watch the Nixon trials in the office. He was
married to a Pulitzer girl. There was an oil shortage at the time so
business was slow. He took a trip to Europe and while he was gone a
couple of days two Palm Beach detectives came in and asked me a
few questions. I told them he had gone to Europe and I didn't know
when he would be back. A few days later I left the office for another
job.
History of The Dexter Corporation
With a history that stretches back over two centuries, The Dexter
Corporation
is the oldest company listed on the New York Stock Exchange.
Founded in 1767, the firm was owned and operated by members of
the same family until 1988. Dexter originally comprised a saw and
grist mill, then expanded into the manufacture of specialty papers.
Having diversified and grown internationally in the latter half of the
twentieth century, the company concentrated on the aerospace,
automotive, electronics, food packaging, and medical markets in
the early 1990s.
When Thomas Dexter, an educated scholar and a farmer, arrived in
America in 1630, he came determined to make his fortune. By the
time he died in 1677, he had amassed a significant farming estate.
In the early 1700s, Seth Dexter, Thomas's great-great-grandson,
settled in the area now known as Windsor Locks, Connecticut, and
started a clothing business. In 1767, Seth's son, Seth II, a wealthy
clothier, bought 160 acres of timberland and a saw mill, and founded
the company today known as the Dexter Corporation. In 1784, with
the help of his brother-in-law and business partner, Jabez Haskell,
Seth II built a grist mill and annexed it to the company.
Soon Seth II's son, Charles Haskell Dexter, joined his father's
business, and C. H., as he was known, began paper making
experiments, where he successfully made wrapping paper from
Manila rope by employing the waste power from the mill. The
discovery yielded little or no remuneration at the time, but laid a
foundation for future products. With his brother-in-law, Edwin
Douglas, a noted engineer, C. H. Dexter reorganized the business
under the name C. H. Dexter & Company in 1847. When Douglas
left, Dexter continued to operate the company alone. C. H. made
the company self-sustaining, while simultaneously helping to
increase his hometown's water power and industrial versatility.
In 1867, C. H. Dexter brought his son, Edwin, and two sons-in-law
into the business, changing its name to C. H. Dexter and Sons. One
of the sons-in-law, Herbert R. Coffin, assumed supervision of the
paper mill and made it a principal part of the company. In 1873 a
fire severely devastated a large portion of the paper mill, but by
1875 a new mill, equipped with up-to-date machinery and a solid
brick structure, was built and in operation. When Edwin Dexter died
in 1886, Herbert R. Coffin assumed full control of the property and
the business. He improved the company's products and distribution,
which led to increased sales.
After Herbert Coffin's death, his two sons, Arthur and Herbert II,
operated the business as a partnership. Following incorporation in
July of 1914, Arthur D. Coffin became president and Herbert II
became vice-president. In 1922, Arthur Coffin hired a young M.I.T.
graduate, Fay Osborn, who played a principal part in the
development of the porous long fiber tea bag paper which Dexter
introduced in the 1930s. This same technology led to the
development of the fibrous meat casing, as well as the stencil base
tissue, and a general line of absorbent and filter paper still being
produced and developed in the late twentieth century.
Innovation and experimentation led Dexter to the forefront of new
paper products. Dexter marketed the first packaged sheet of toilet
paper, which was sold with a wire loop so that it could be hung on a
convenient hook or nail. The toilet paper came in two grades, but
was discontinued in the early 1930s. The company also introduced
the first catalogue cover paper, as well as the "electrolytic
absorbent capacitor" paper, and patented a metal tarnish
preventative tissue which sold extensively to the silverware
manufacturers.
In 1936, when Arthur's son, Dexter, became president of the
company, its main products were short fiber paper products, such as
carbonizing tissue, lightweight air mail writing papers, and
condenser tissues for the electrical industry. The company produced
long fiber paper only on a limited basis. Under Dexter Coffin's
administration, however, the company devoted 100 percent of its
production to long fiber paper and webs for industrial uses.
By the time David L. Coffin became Dexter's president in 1958, the
company had gained a reputation as being a stodgy old New England
relic that was nearly stagnant. The company produced only paper
products, opposed hiring from outside the Windsor Locks area, and
prohibited borrowing from lending institutions. It lacked an
organized sales force, and almost one-third of its personnel was 65
or older. To modernize the company's approach to business, David
Coffin hired young professional managers and restructured the
family-controlled executive board to include outsiders. He instituted
strong cost controls, and trained and organized a sales force. (Coffin
had himself started out as a salesman for the company in 1948.) He
also established a plan for acquiring and divesting companies to
achieve growth. Coffin's target was the field of specialty chemicals.
In 1958 the Dexter Corporation acquired the assets of Standard
Insulation Company, manufacturer of laminates, pre-impregnated
products, and closure materials. Dexter sold Standard, however,
when the company decided to narrow its focus to the area of
specialty formulators of industrial finishes. Dexter bought Chemical
Coatings Company in 1961, Lacquer Products Company in 1962, and
Midland Industrial Finishes Company in 1963.
In 1967, on its 200th birthday, the Dexter Corporation offered its
shares to the public. With this new capital, the company embarked
on a path of mergers and acquisitions. In November of 1967, the
company merged with Hysol Corporation (currently a division of the
company). In 1973 the company bought Puritan Chemical Company,
maker of chemical specialties for the sanitation industry, for $6.9
million. Dexter purchased Howe and Brainbridge Inc. for $11.1
million in 1976, and acquired Mogul Corporation for $50 million in
1977. In 1981 Dexter purchased Fre Kote Inc., a plastics release
agent firm, and merged it with the Hysol Division. In 1983 the
company acquired Bethesda Research Labs and merged it with the
GIBCO Corporation (formerly a wholly owned subsidiary) to form
Life Technologies, Inc., whose major product is a DNA-based test to
determine the presence of cancer in the cervix.
In 1985 the company launched a two-year restructuring program,
New Directions, intended to stimulate productivity and ensure a
healthy return on investments. The company became more
centralized, divested its low-margin holdings, and sought new areas
of investment in materials technology and development. Dexter
targeted seven main business areas it planned to enter: specialty
thermoplastics, high performance formulated chemicals, advanced
composites, specialty materials for packaging, specialty industrial
services, environmental services, and biotechnology supplies and
products. To build on its existing business, Dexter acquired several
businesses in the areas of advance composites, with applications in
both the aerospace and housing industries (the tough plastics are
used as frames and moldings for windows because they do not
conduct heat), as well as specialty thermoplastics targeted for the
automotive industry (the light-weight durable plastics replace metal
parts in cars).
In 1985 Dexter's Hysol Division, producer of epoxies, Courtaulds
PLC of Britain, a pioneer in the development of carbon fibers, and
several other investors joined to form Hysol Grafil Composite
Components Company (HGCC), a small custom molder of high-tech
aerospace and defense parts. HGCC's biggest markets are the large
aerospace engine manufacturers, such as General Electric
Company. Dexter and Courtaulds shared a 50-50 investment in
research, development, and marketing in the company. HGCC, one
of only eight companies licensed to produce the aerospace resin
patented and licensed by the National Aeronautics and Space
Administration, was the first to sell this resin in liquid form.
The federal government selected Dexter to supply carbon fiber and
resin to major defense contractors competing for contracts to
manufacture the government's new LHX helicopter. The company
currently supplies the industry with other products, such as
adhesives used in McDonnell Douglas AH-64 Apache helicopters.
The purchases of Research Polymers International (RPI), a leading
manufacturer of thermoplastic polyolefin compounds, in September
of 1986, and Rutland Plastics, a specialty plastics firm, in December
of the same year, signaled Dexter's entrance into the high-
performance thermoplastics market. Rutland, a leading
manufacturer of plastics screen inks primarily for use with textiles,
was one of only a few companies to serve the automotive market
with specialty plastics. The company divided its thermoplastics
businesses into two divisions in order to focus on different market
segments. RPI/Dexter directed its attention to automotive plastics,
while Dexter Plastics concentrated on the medical, appliance, and
electrical markets. Plastics comprised 20 percent of Dexter's $650
million sales by the mid-1990s.
By 1988, the New Directions program had seen the divestment of
about 13 businesses and the acquisition of 13 new interests. That
year, the corporate restructuring culminated in a management shift
the likes of which Dexter Corporation had never experienced. After
over 220 years under the leadership of a descendant (by blood or
marriage) of Thomas Dexter, K. Graham Walker was selected to
succeed David L. Coffin as The Dexter Corporation's president and
chief executive officer. Although it was a profound event in the
company's history, the transition from family administration did
not bring the immediate, drastic organizational change that some
might have expected.
For two years, Walker essentially continued the strategy of his
predecessor, watching for likely acquisition and divestment targets.
Then, in 1990, the new leader announced a comprehensive
restructuring that would extend from the roster of businesses to
operations and even to the corporate culture. The three-year plan
traded lagging (but often not losing) holdings for increasingly
"upstream" businesses. In 1992 and 1993, the company completed
the sales of its water management, composites, plastisols, and
pultrusions businesses. New interests included a strategic joint
venture with the Netherlands company Akzo Coatings International
B.V. wherein Dexter traded its North American coil coatings
business for its partner's aerospace coatings interests in the
Americas. The two companies mutually financed a joint aerospace
coatings venture in Europe. The 1993 acquisition of Vernicolor A.G.,
of Switzerland, helped better position Dexter in the European food
packaging market. Overall, the restructuring reduced Dexter's
operating divisions by half.
Internal aspects of the early 1990s restructuring included an
analysis and revision of Dexter's executive pay plan by the Hay
Group, pioneers in the field of compensation. They recommended
linking incentives more closely to performance objectives.
Workforce reductions eliminated 16 percent of the company's total
payroll. An employee empowerment plan gave the remaining
manufacturing personnel more training, as well as more control
over their work environments. These changes in Dexter's corporate
culture helped decrease rejects and accidents as well as overhead.
The company included certification with the International Standards
Organization as one of the qualifications for reaching its goal of
becoming a "preferred supplier" to its increasingly global
customers.
In the midst of the restructuring, Dexter endured a $7 million loss
that was partially attributable to the multi-million settlement of
environmental litigation regarding its Windsor Locks nonwoven
fabrics plant. After declining slightly from 1992 to 1993, the
company's annual revenues rose to $974.72 million and net income
recovered somewhat to $38 million in 1994.
In the years following Dexter's reorganization, CEO Walker hoped
to continuously improve financial performance through a variety of
strategies. He planned to invest operational savings into increased
research and development with a goal of originating the proprietary
technology that could carve out a profitable niche for the company.
Dexter would also continue to seek key niches in its chosen
markets, promote synergy among divisions, and focus international
growth on Europe and Asia. Other long-term goals included:
boosting annual earnings per share, increasing profitability, and
keeping long-term debt under 35 percent of capital.
Principal Subsidiaries: Dexter Aerospace Materials; Dexter
Automotive Materials; Dexter Electronic Materials; Dexter
Magnetic Materials; Dexter Nonwovens; Dexter Packaging
Products; Dexter S.A.; Life Technologies, Inc.; D&S Plastics
International (50%).
Related information about Dexter
Dexter can refer to the following:
* The name of a number of places in the United States of America:
*
o Dexter, Arkansas
o Dexter, Georgia
o Dexter, Illinois
o Dexter, Indiana
o Dexter, Iowa
o Dexter, Kansas
o Dexter, Kentucky
o Dexter, Maine
o Dexter, Michigan
o Dexter, Minnesota
o Dexter, Mississippi
o Dexter, Missouri
o Dexter, New Mexico
o Dexter, New York
o Dexter, North Carolina
o Dexter, Ohio
o Dexter, Oregon
o Dexter, Pennsylvania
o Dexter, Texas
o Dexter, Wisconsin
* In entertainment:
o Dexter Holland, lead singer of The Offspring
o Dexter is also the name of a character from the animated series
Dexter's Laboratory.
o Dexter is an original Showtime television series scheduled to
debut in mid-2006.
* Other:
* Dexter Shoes is a popular brand name shoe with corporate
headquarters based in Hudson, NH.
* Dexter is also a breed of cattle.
* Dexter means right or to the right, and is a heraldry term
referring to the right of the bearer of the arms, and to the left by
the viewer's eyes.
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EDITORIAL
HYMAN: Obama's Kenya ghosts
Mark Hyman
Sunday, October 12, 2008
ASSOCIATED PRESS Kenyan Prime Minister Raila Odinga is
calling President Robert Mugabe's Zimbabwe an
"embarrassment" to Africa and would support the forced
removal of the ruler.
COMMENTARY:
About 50 parishioners were locked into the Assemblies of
God church before it was set ablaze. They were mostly
women and children. Those who tried to flee were hacked
to death by machete-wielding members of a mob numbering
2,000.
The 2008 New Year Day atrocity in the Kenyan village
Eldoret, about 185 miles northwest of Nairobi, had all the
markings of the Rwanda genocide of a decade earlier.
By mid-February 2008, more than 1,500 Kenyans were killed.
Many were slain by machete-armed attackers. More than
500,000 were displaced by the religious strife. Villages lay
in ruin. Many of the atrocities were perpetrated by Muslims
against Christians.
The violence was led by supporters of Raila Odinga, the
opposition leader who lost the Dec. 27, 2007, presidential
election by more than 230,000 votes. Odinga supporters
began the genocide hours after the final election results
were announced Dec. 30. Mr. Odinga was a member of
Parliament representing an area in western Kenya, heavily
populated by the Luo tribe, and the birthplace of Barack
Obama's father.
Mr. Odinga had the backing of Kenya's Muslim community
heading into the election. For months he denied any ties to
Muslim leaders, but fell silent when Sheik Abdullahi Abdi,
chairman of the National Muslim Leaders Forum, appeared
on Kenya television displaying a memorandum of
understanding signed on Aug. 29, 2007, by Mr. Odinga and
the Muslim leader. Mr. Odinga then denied his denials.
The details of the MOU were shocking. In return for Muslim
backing, Mr. Odinga promised to impose a number of
measures favored by Muslims if he were elected president.
Among these were recognition of "Islam as the only true
religion," Islamic leaders would have an "oversight role to
monitor activities of ALL other religions [emphasis in
original]," installation of Shariah courts in every
jurisdiction, a ban on Christian preaching, replacement of
the police commissioner who "allowed himself to be used
by heathens and Zionists," adoption of a women's dress
code, and bans on alcohol and pork.
This was not Mr. Odinga's first brush with notoriety. Like his
father, Jaramogi Oginga Odinga, the main opposition leader
in the 1960s and 1970s, Raila Odinga is a Marxist He
graduated from East Germany's Magdeburg University in
1970 on a scholarship provided by the East German
government. He named his oldest son after Fidel Castro.
Raila Odinga was implicated in the bloody coup attempt in
1982 against then-President Daniel Arap Moi, a close ally of
the United States. Kenya has been one of the most stable
democracies in Africa since the 1960s. The ethnic cleansing
earlier this year was the worst violence in Kenya since that
1982 coup attempt.
Mr. Odinga spent eight years in prison. At the time, he
denied guilt but later detailed he was a coup leader in his
2006 biography. Statue of limitations precluded further
prosecution when the biography appeared.
Initially, Mr. Odinga was not the favored opposition
candidate to stand in the 2007 election against President
Mwai Kibaki, who was seeking his second term. However,
he received a tremendous boost when Sen. Barack Obama
arrived in Kenya in August 2006 to campaign on his behalf.
Mr. Obama denies that supporting Mr. Odinga was the
intention of his trip, but his actions and local media reports
tell otherwise.
Mr. Odinga and Mr. Obama were nearly inseparable
throughout Mr. Obama's six-day stay. The two traveled
together throughout Kenya and Mr. Obama spoke on behalf
of Mr. Odinga at numerous rallies. In contrast, Mr. Obama
had only criticism for Kibaki. He lashed out against the
Kenyan government shortly after meeting with the
president on Aug. 25. "The [Kenyan] people have to suffer
over corruption perpetrated by government officials," Mr.
Obama announced.
"Kenyans are now yearning for change," he declared. The
intent of Mr. Obama's remarks and actions was transparent
to Kenyans - he was firmly behind Mr. Odinga.
Mr. Odinga and Mr. Obama had met several times before
the 2006 trip. Reports indicate Mr. Odinga visited Mr.
Obama during trips to the U.S. in 2004, 2005 and 2006. Mr.
Obama sent his foreign policy adviser Mark Lippert to
Kenya in early 2006 to coordinate his summer visit. Mr.
Obama's August trip coincided with strategizing by Orange
Democratic Movement leaders to defeat Mr. Kibaki in the
upcoming elections. Mr. Odinga represented the ODM
ticket in the presidential race.
Mr. Odinga and Mr. Obama's father were both from the Luo
community, the second-largest tribe in Kenya, but their ties
run much deeper. Mr. Odinga told a stunned BBC Radio
interviewer the reason why he and Mr. Obama were staying
in near daily telephone contact was because they were
cousins. In a Jan. 8, 2008, interview, Mr. Odinga said Mr.
Obama had called him twice the day before while
campaigning in the New Hampshire primary before adding,
"Barack Obama's father is my maternal uncle."
President Kibaki requested a meeting of all opposition
leaders in early January in an effort to quell the violence.
All agreed to attend except Mr. Odinga. A month later, Mr.
Kibaki offered Mr. Odinga the role of prime minister, the de
facto No. 2 in the Kenyan government, in return for an end
to the attacks. Mr. Odinga was sworn in on April 17, 2008.
Mr. Obama's judgment is seriously called into question
when he backs an official with troubling ties to Muslim
extremists and whose supporters practice ethnic cleansing
and genocide. It was Islamic extremists in Kenya who
bombed the U.S. Embassy in 1998, killing more than 200 and
injuring thousands. None of this has dissuaded Mr. Obama
from maintaining disturbing loyalties.
Mark Hyman is an award-winning news commentator for
Sinclair Broadcast Group Inc.
Prominent Philadelphia attorney and Hillary Clinton
supporter Phillip Berg has filed a lawsuit contesting Barack
Obama’s citizenship qualifications to seek the presidency.
Upon learning of the lawsuit, I couldn’t help but conclude
that Berg must have read one of these Bob McCarty Writes
posts about the presumptive Democratic Party presidential
nominee:
Barack Obama Birth Certificate Dubbed a Fake (July 21,
2008)
Update Offered on Bogus Obama Birth Certificate (Aug. 4,
2008)
Blogger Demands FEC Verify Obama’s Eligibility (Aug. 7,
2008)
Below are the key points of the lawsuit which, if successful,
could turn the 2008 presidential election process upside
down:
1. Obama is a representative of the Democratic People.
However, the Obama must meet the Qualifications specified
for the United States Office of the President, which is he
must be a “natural born” citizen. Unfortunately, Obama is
not a “natural born” citizen. Just to name one of the
problems, Obama lost his U.S. citizenship when his mother
married an Indonesian citizen and relocated herself and
Obama to Indonesia wherein Obama’s mother naturalized in
Indonesia and Obama followed her naturalization, as he was
a minor and in the custody of his mother. Obama failed to
take the oath of allegiance when he turned eighteen (18)
years to regain his United States Citizenship status.
2. The Democratic National Committee is for Plaintiff and
“We the People” who believe in the Democratic Vision. The
Democratic National Party is supposed to represent the
Democratic Americans in seeking honest leadership, Open
Government, Real Security, Energy Independence,
Economic Prosperity, Educational Excellence, a Healthcare
System that works for Everyone and Retirement Security.
The Democratic Party is supposed to represent and protect
the interests of working Americans and guaranteeing
personal liberties for all. Of which includes securing a
Democratic Nominee on the Presidential Election ballot who
represents the Democratic vision and who is qualified and
eligible to run for Office of the President under the
qualifications of the United States Constitution.
3. The actions of Obama, a U.S. Senator, in running for
President of the United States, knowing he is not eligible,
have been taken entirely without authorization under the
United States Constitution, completely ignoring the
qualification and procedures created by the United States
Constitution he is purporting to enforce.
Developing…
Russia's Ominous New Doctrine?
By Strobe Talbott
Friday, August 15, 2008
Russia has been justifying its rampage through Georgia as
a "peacekeeping" operation to end the Tbilisi
government's "genocide" and "ethnic cleansing" of South
Ossetia. That terminology deliberately echoes U.S. and
NATO language during their 1999 bombing campaign
against Serbia, which resulted in the independence of
Kosovo. Essentially, it's payback time for a grievance that
Russia has borne against the West for nine years. The
Russians are relying on the conceit that Georgian
President Mikheil Saakashvili is today's equivalent of
Slobodan Milosevic, and that the South Ossetians are (or
were until their rescue by the latter-day Red Army last
week) being victimized by Tbilisi the way the Kosovar
Albanians suffered under Belgrade.
This analogy turns reality, and history, upside down. Only
after exhausting every attempt at diplomacy did NATO go to
war over Kosovo. It did so because the formerly
"autonomous" province of Serbia was under the heel of
Belgrade and the Milosevic regime was running amok
there, killing ethnic Albanians and throwing them out of
their homes. By contrast, South Ossetia -- even though it is
on Georgian territory -- has long been a Russian
protectorate, beyond the reach of Saakashvili's
government.
An accurate comparison between the Balkan disasters of
the 1990s and the one now playing out in the Caucasus
underscores what is most ominous about current Russian
policy. Seventeen years ago, the Soviet Union came apart
at the seams more or less peacefully. That was
overwhelmingly because Boris Yeltsin insisted on
converting the old inter-republic boundaries into new
international ones. In doing so, he kept in check the forces
of revanchism among communists and nationalists in the
Russian parliament (which went by the appropriately
atavistic name "the Supreme Soviet").
Meanwhile, Yugoslavia collapsed into bloody chaos
because its leaders engaged in an ethnically and
religiously based land-grab. Milosevic, as the best-armed
of the lot, tried to carve a "Greater Serbia" out of the flanks
of Bosnia and Croatia. If Yeltsin had gone that route,
seeking to create a Greater Russia that incorporated
Belarus and the parts of Ukraine, northern Kazakhstan and
the Baltic states populated by Russian speakers, there
could have been conflict across 11 time zones with tens of
thousands of nuclear weapons in the mix.
A question that looms large in the wake of the past week is
whether Russian policy has changed with regard to the
permanence of borders. That seemed to be what Russian
Foreign Minister Sergei Lavrov was hinting yesterday when
he said, "You can forget about any discussion of Georgia's
territorial integrity." He ridiculed "the logic of forcing South
Ossetia and Abkhazia to return to being part of the
Georgian state."
Lavrov is a careful and experienced diplomat, not given to
shooting off his mouth. That makes his comments all the
more unsettling. If he has given the world a glimpse of the
Russian endgame, it's dangerous in its own right and in the
precedent it would set. South Ossetia and Abkhazia might
be set up as supposedly independent countries ("just like
Kosovo," the Russians would say) -- but would in fact be
satrapies of Russia. While Russia might see that outcome
as proof of its comeback as a major power, the
Balkanization of the Caucasus may not end there: Chechnya
is just one of several regions on Russian territory that are
seething with resentment against the Kremlin and that
might hanker after a version of independence far less to
Moscow's liking than what may be contemplated for
Abkhazia and South Ossetia.
Among Secretary of State Condoleezza Rice's important
tasks in the days ahead is to get clarity on whether a
Lavrov doctrine has replaced the Yeltsin one of 16 years
ago. If so, big trouble looms -- including for Russia.
Moscow's action and rhetoric of the past week have
highlighted yet another, potentially more consequential
respect in which this episode could bode ill for all
concerned. For the Bush administration -- and those of Bill
Clinton and George H.W. Bush as well -- the fundamental
premise of American policy has been that Russia has put its
Soviet past behind it and is committed, eventually, to
integrating itself into Europe and the political, economic
and ideological (as opposed to the geographical) "West."
Prominent Russians have said as much. In one of my first
meetings with Vladimir Putin, before he became president,
he spoke of his country's zapadnichestvo, its Western
vocation. Yet it now appears that beyond the undisguised
animosity that Putin bears toward Saakashvili, he and his
government regard Georgia's pro-Western bent and its
aspiration to join two Western institutions, NATO and the
European Union, as, literally, a casus belli. If that is the
case, the next U.S. administration -- the fourth to deal with
post-Soviet Russia -- will have to reexamine the underlying
basis for the whole idea of partnership with that country
and its continuing integration into a rule-based
international community.
The writer is president of the Brookings Institution and was
deputy secretary of state in the Clinton administration.
How the West
Fueled Putin's
Sense of Impunity
By GARRY KASPAROV
August 15, 2008
Russia's invasion of Georgia reminded me of a
conversation I had three years ago in Moscow with a
high-ranking European Union official. Russia was much
freer then, but President Vladimir Putin's
onslaught against democratic rights was already underway.
"What would it take," I asked, "for Europe to stop treating
Putin like a democrat? If all opposition
parties are banned? Or what if they started shooting
people in the street?" The official shrugged and
replied that even in such cases, there would be little the
EU could do. He added: "Staying engaged will
always be the best hope for the people of both Europe and
Russia."
The citizens of Georgia would likely disagree. Russia's
invasion was the direct result of nearly a
decade of Western helplessness and delusion.
Inexperienced and cautious in the international arena
at the start of his reign in 2000, Mr. Putin soon learned he
could get away with anything without
repercussions from the EU or America.
Russia reverted to a KGB dictatorship while Mr. Putin was
treated as an equal at G-8 summits. Italy's
Silvio Berlusconi and Germany's Gerhardt Schroeder
became Kremlin business partners. Mr. Putin
discovered democratic credentials could be bought and
sold just like everything else. The final
confirmation was the acceptance of Dmitry Medvedev in
the G-8, and on the world stage. The leaders
of the Free World welcomed Mr. Putin's puppet, who had
been anointed in blatantly faked elections.
On Tuesday, French President Nicolas Sarkozy sprinted to
Moscow to broker a ceasefire agreement.
He was allowed to go through the motions, perhaps as a
reward for his congratulatory phone call to Mr.
Putin after our December parliamentary "elections." But
just a few months ago Mr. Sarkozy was in
Moscow as a supplicant, lobbying for Renault. How much
credibility does he really have in Mr. Putin's
eyes?
In reality, Mr. Sarkozy is attempting to remedy a crisis he
helped bring about. Last April, France
opposed the American push to fast-track Georgia's North
Atlantic Treaty Organization membership. This
was one of many missed opportunities that collectively built
up Mr. Putin's sense of impunity. In this
way the G-7 nations aided and abetted the Kremlin's
ambitions.
Georgia blundered into a trap, although its imprudent
aggression in South Ossetia was overshadowed
by Mr. Putin's desire to play the strongman. Russia seized
the chance to go on the offensive in
Georgian territory while playing the victim/hero. Mr. Putin
has long been eager to punish Georgian
President Mikheil Saakashvili for his lack of respect both
for Georgia's old master Russia, and for Mr.
Putin personally. (Popular rumor has it that the Georgian
president once mocked his peer as "Lilli-
Putin.")
Although Mr. Saakashvili could hardly be called a model
democrat, his embrace of Europe and the West
is considered a very bad example by the Kremlin. The
administrations of the Georgian breakaway areas
of Abkhazia and South Ossetia are stocked, top to bottom,
with bureaucrats from the Russian security
services.
Throughout the conflict, the Kremlin-choreographed
message in the Russian media has been one of
hysteria. The news presents Russia as surrounded by
enemies on all sides, near and far, and the
military intervention in Georgia as essential to protect the
lives and interests of Russians. It is also
often spoken of as just the first step, with enclaves in
Ukraine next on the menu. Attack dogs like
Russian nationalist politician Vladimir Zhirinovsky are used
to test and whip up public opinion. Kremlin-
sponsored ultranationalist ideologue Alexander Dugin went
on the radio to say Russian forces "should
not stop until they are stopped." The damage done by such
rhetoric is very slow to heal.
The conflict also threatens to poison Russia's relationship
with Europe and America for years to come.
Can such a belligerent state be trusted as the guarantor of
Europe's energy supply? Republican
presidential candidate John McCain has been derided for
his strong stance against Mr. Putin,
including a proposal to kick Russia out of the G-8. Will his
critics now admit that the man they called an
antiquated cold warrior was right all along?
The conventional wisdom of Russia's "invulnerability"
serves as an excuse for inaction. President
Bush's belatedly toughened language is welcome, but
actual sanctions must now be considered. The
Kremlin's ruling clique has vital interests -- i.e. assets --
abroad and those interests are vulnerable.
The blood of those killed in this conflict is on the hands of
radical nationalists, thoughtless politicians,
opportunistic oligarchs and the leaders of the Free World
who value gas and oil more than principles.
More lives will be lost unless strong moral lines are drawn
to reinforce the shattered lines of the map.
Mr. Kasparov, leader of The Other Russia coalition, is a
contributing editor of The Wall Street Journal.
The Long Road to Chaos in Pakistan
By DEXTER FILKINS
Published: September 27, 2008
Hours after a truck bomber slew 53 people last
weekend at the Marriott Hotel in Islamabad, Pakistan,
the country's senior adviser in the ministry laid
responsibility for the attack on Taliban militants holed
up in the Federally Administered Tribal Areas, or FATA,
the remote, wild region that straddles the border with
Afghanistan.
Bombing at Hotel in Pakistan Kills at Least 40
(September 21, 2008)
“All roads lead to FATA,” Rehman Malik , said.
If the past is any guide, Mr. Malik’s statement is almost
certainly correct.
But what Mr. Malik did not say was that those same
roads, if he chose to follow them, would very likely loop
back to Islamabad itself.
The chaos that is engulfing Pakistan appears to
represent an especially frightening case of strategic
blow back, one that has now begun to seriously
undermine the American effort in Afghanistan.
Tensions over Washington’s demands that the
militants be brought under control have been rising,
and last week an exchange of fire erupted between
American and Pakistani troops along the Afghan
border. So it seems a good moment to take a look back
at how the chaos has developed.
It was more than a decade ago that Pakistan’s leaders
began nurturing the Taliban and their brethren to help
advance the country’s regional interests. Now they are
finding that their home-schooled militants have grown
too strong to control. No longer content to just cross
into Afghanistan to kill American soldiers, the militants
have begun to challenge the government itself. “The
Pakistanis are truly concerned about their whole
country unraveling,” said a Western military official,
speaking on condition of anonymity because the
matter is sensitive.
That is a horrifying prospect, especially for Pakistan’s
fledgling civilian government, its first since 1999. The
country has a substantial arsenal of nuclear weapons.
The tribal areas, which harbor thousands of Taliban
militants, are also believed to contain Al Qaeda’s senior
leaders, including Osama bin Laden and Ayman al-
Zawahri.
It’s all the greater a paradox, then, that the Taliban
militias now threatening the stability of Pakistan owe
their survival — and much of their present strength —
to a succession of Pakistani governments that
continues to the present day.
The origins of the present predicament date to 1994,
when Pakistan, unnerved by the bloody civil war that
had engulfed Afghanistan following the Soviet Union’s
departure five years earlier, turned to a group of fierce
but moralistic Afghan tribesman who had won a string
of victories. They called themselves “the students” —
in Arabic and Pashto, the Taliban. Sensing an
opportunity, the Pakistani government, led then by
Benazir Bhutto, threw its support behind them. Aided
by Pakistani money, supplies and military advisers, the
Taliban swept across Afghanistan, entering the capital
in 1996.
It was the same group of men — under the Taliban,
women were stripped of nearly all their rights — whom
the Americans overthrew when they invaded
Afghanistan after Sept. 11, 2001.
Which brings us to the current crisis. After the 9/11
terrorist attacks, then-President Pervez Musharraf
publicly promised to break with the Taliban. For that,
Pakistan was rewarded with nearly $10 billion in
American aid. But over the years, something else
happened: whatever President Musharraf said in
public, the military and intelligence services over which
he presided demonstrated every intention of
strengthening the Taliban, who fled en masse to the
borderlands after their expulsion from Kabul in
November 2001.
Over the years, the evidence has been too obvious to
ignore. In 2002, for instance, Mr. Musharraf ordered the
arrest of some 2,000 suspected militants — many of
whom had trained in Pakistani-sponsored camps.
Weeks later, without fanfare, he released nearly all of
them.
Likewise, after 9/11, President Musharraf promised to
rein in the estimated 25,000 private Islamic schools —
many of them incubators of Islamic militants — but
never took the slightest steps to do so.
The most glaring example came last July, when
operatives of Pakistan’s Inter Services Intelligence, or I.
S.I., were said to have helped fighters under Serajuddin
Haqqani, a Taliban commander, bomb the Indian
Embassy in Kabul. An Indian defense attaché was
among 54 people killed, and American officials said
there was overwhelming evidence pointing to I.S.I.
involvement. “It was sort of this ‘aha’ moment,” an
American official said.
The single most persuasive explanation for Pakistan’s
continued involvement with the Taliban is the country’s
obsession with India. Pakistan and India have fought
three major wars since they broke with the British
Empire in 1947, and the rivalry lives on. India has allied
itself closely with the Afghan government of Hamid
Karzai. In 2006, for instance, a senior I.S.I. Official told a
New York Times reporter that he regarded Mr. Haqqani
as an I.S.I. Intelligence asset. Mr. Haqqani, an Afghan
Pashtun, is one of the Taliban’s most senior
commanders battling the Americans. His father,
Jalalhuddin, is a longtime associate of Osama bin
Laden. The Haqqanis are thought to be overseeing
operations from the border territories.
But while the Pakistanis have been primarily interested
in using the Taliban to exert their influence inside
Afghanistan, the Taliban have expanded their
ambitions to include Pakistan itself. A turning point
came in the summer of 2007, when Pakistani troops
stormed the Red Mosque, where Islamic militants had
gathered in the capital. The gun battle killed nearly 100
people. Taliban militants launched a wave of suicide
bombings around the country, and Baitullah Mehsud
formed Tariq-i-Taliban Pakistan, an umbrella
organization of several Taliban groups, and declared
war on the Pakistani government. Since then, Taliban
militias have expanded their reach beyond the FATA
areas to include much of the neighboring Northwest
Frontier Province.
Which brings us, finally, to the Americans. Concerned
about the growth of the Taliban inside Pakistan — and
about the growing losses of American soldiers in
Afghanistan — American officials have pressed
Pakistani leaders to crush the militants in their bases
inside the tribal areas. The Pakistanis have launched a
series of offensives, and all of them have ended with
the militants stronger than ever. It may be that the
Pakistan Army is too inept to destroy the Taliban, but
there is abundant evidence suggesting that at least
some elements of the army do not want to do that.
“I would not rule out the possibility that explicit deals
were made by the military,” the American military
official said.
With the arrival of Pakistan’s new civilian government
last February, the situation seems more intractable
than ever. The government, now led by Yousaf Raza
Gilani, is still hugely dependent on America. The Bush
administration, in turn, has continued to press Mr.
Gilani for military operations against the militants in the
tribal areas.
And there’s the rub. Each time Mr. Gilani has sent
troops into those areas, he has succeeded only in
sparking the outcries of his fellow Pakistanis, who are
growing increasingly bitter toward what they see as the
Bush administration’s overbearing ways. The attack on
the Marriott, for instance, came on the heels of a recent
Pakistani offensive in the Bajaur tribal agency. While
there is no direct evidence that the attack on the
Marriott was launched in retaliation for that offensive,
many Pakistanis certainly saw it that way.
Meanwhile, as the Taliban has grown stronger, the
Bush Administration has stepped up its own military
operations inside Pakistan, taking the extraordinary
step this month of landing helicopter-borne soldiers in
a village in South Waziristan to strike a suspected
militant hideout. The military strike set off tremors of
anti-American anger; Pakistani officials, buffeted by
domestic criticism, have promised to use force against
any future American incursions.
What does the future hold? Some American analysts
worry that the fledgling civilian government in Pakistan
won’t be able to survive the cross-currents of American
pressure and the anti-American anger it stimulates. For
their part, American officials have been silent on
whether they will attempt more cross-border raids, but
privately they say the situation in the tribal areas is
contributing to the deterioration of the situation in
Afghanistan. Adm. Mike Mullen, chairman of the Joint
Chiefs of Staff, said this month that while he was sure
that victory in Afghanistan was possible, ”I’m not
convinced we’re winning it” there now.
One thing seems a good bet: that the fires and deaths
that consumed the Marriot Hotel last weekend will not
be the last.
Dexter Filkins, who has covered the Afghanistan and
Iraq wars for The New York Times, is the author of “The
Forever War” (Knopf).
