After being convicted in January of extortion, conspiracy, conflict of interest and soliciting a bribe, two V.I. Police officers who were supposed to be sentenced Wednesday are now a step away from having the decisions of two juries overturned and having their cases retried in federal District Court.
Citing a technicality supported by recent case law from Georgia, VIPD Capt. Enrique Saldana, Sgt. George Greene and civilian co-defendant Louis Roldan say that some of their relatives and friends were denied access to the federal courtroom during jury selection, thereby denying them their 6th Amendment right to a fair and speedy trial.
And, judging by the final comments of Chief Judge Curtis Gomez in Wednesday’s evidentiary hearing on the motion for retrial, the trio has a shot.
If nothing else, their “Hail Mary” had Gomez scrambling deep Wednesday, buying them at least another month with their families before the June 23 deadline for both sides to provide legal briefs for Gomez and Judge John E. Jones supporting their cases.
The motion does not challenge their guilt. It only points out a possible problem in the management of the physical court. Nevertheless, Gomez said all the defendants need to prove is that people were excluded from proceedings, which he indicated that they had proven in a full day of testimony Wednesday, and that the exclusion was illegitimate.
At least two court security officers, deputized by the U.S. Marshals service to manage the courthouse, said that members of the public were asked to leave only because all available seats were taken by prospective jurors or because the jury was participating in orientation and other administrative meetings that were not constitutionally protected court procedures open to the public.
“The question is whether it is permissible,” Gomez said of their exclusion.
For Greene, success of the motion would mean scrapping two guilty verdicts and would give him a chance to start over with both fresh juries and, perhaps, adversaries from the U.S. Attorney’s office with diminished morale.
As it stands, Greene faces up to 11 years in prison and as much as $500,000 in fines for a two-count conviction for possessing two illegal handguns with obliterated serial numbers. He was convicted again on Jan. 28, along with Saldana and Roldan, on the extortion and conspiracy charges in a separate but related police corruption case.
He turned back to his mother and fiancé Wednesday with a nod when it looked like Judge Gomez had bought the last-minute argument for a retrial.
The motion was filed by Greene’s attorney, Thurston McKelvin, who cited a recent ruling from Georgia in favor of a defendant whose family was excluded from a trial by a judge.
“It’s about government action denying a defendant a constitutional right,” McKelvin said Wednesday.
Among his witnesses was Greene’s brother, Curtis Frederick, who said he was told by a court security officer that he could not enter the court on Jan. 20 during jury selection for Greene’s solo trial on the weapons charges. A court security officer, however, testified for the prosecution that Frederick was denied access because all available seats were taken by prospective jurors.
Frederick’s own testimony Wednesday may have provided prosecutors with one of their best arguments. Frederick said that immediately after being denied access to the Jan. 25 jury selection, attorney Jesse Gessin, who worked on behalf of the defense at the time, asked him to sign an affidavit saying he had been excluded.
As testimony continued Wednesday, it became clear that Gessin had solicited statements from Frederick and several others, even as the trial went on, without notifying the court that there was a problem – giving the appearance, at least, that the defense team was essentially saving an ace in case they were convicted.
“Mr. Gessin was aware of something that could have been corrected and did not bring it to the attention of the court, but used it afterward,” Judge Gomez said.
Gomez later said, however, that the actions of an attorney cannot strip a defendant of his 6th Amendment rights.
Among the other witnesses for the defense were Earl Harrison, Green’s pastor from the Mt. Zion Church of God, and his assistant, Lerone Hodge, who said they were told by an “officer of the court” to leave on the morning of Jan. 25, when the retrial of Saldana, Greene and Roldan began.
The prosecution and Judge Gomez himself pointed out holes in their stories.
Harrison, for example, said they were asked to leave because they were not family members, while Hodge recalled that they were asked to leave because they were not jurors. Both said that nothing was actually going on in the courtroom at the time, and that no judge was present.
Judge Gomez and U.S. Attorney Kim Lindquist both pointed such contradictions in those and other stories presented by those and other witnesses as to whether jury selection was actually even going on at the time they were allegedly asked to leave.
Saldana’s wife and others, who said they came to support the defendants but were denied access to the courtroom during jury selection, were countered by court staff who said they either never denied anyone access or limited access because of space.
Gomez said much of the testimony amounted to “he said, she said,” and remained inconclusive upon first glance.
Still, Saldana’s attorney, Darren John-Baptiste, said their denied access amounted to a “structural defect of the trial,” which should be redressed by a retrial. If they do get their wish, Saldana, Greene and Roldan will face their third jury after a hung jury in December led to the Jan. 25 retrial at question during Wednesday’s hearing.
Since Judge Jones tried Greene’s Jan. 20 trial on weapons charges that led to his first conviction, Gomez said he must hear the same information presented in court Wednesday.
He said he would attempt to accomplish that by allowing both sides – three defense attorneys and the government prosecutor – to present detailed briefs supporting their arguments and summarizing their evidence by June 23.
