A federal judge is now struggling to parse arguments by attorneys representing two V.I. Police officers facing long prison sentences for extortion and other crimes who say the court violated their 6th Amendment rights to a public trial.
Citing a technicality supported by a recent Supreme Court decision from the mainland, VIPD Capt. Enrique Saldana, Sgt. George Greene and civilian co-defendant Louis Roldan say that a few of their relatives and friends were not allowed to observe jury selection during their January trials in District Court, thus violating their constitutional rights.
Among other things, the 6th Amendment guarantees a fair, speedy—and public—trial.
Chief Judge Curtis Gomez took more testimony Tuesday in a second evidentiary hearing, calling District Court staff and a deputy U.S. Marshal to the stand trying to determine if anyone was denied access and, if so, by whose order.
“We know a lot about who was out on the balcony, who went to lunch, who made it through the first door and who made it through the second door,” Gomez said Tuesday.
“What they haven’t established is what was happening” inside the courtroom at the time, he said.
The attorneys for Saldana, Greene and Roldan made no effort to disguise their goal of overturning the juries’ decisions and to force a retrial – or even forfeiture, if Saldana’s attorney, Darren John-Baptiste, gets his way.
“The sanction for a 6th Amendment violation is a retrial,” Gomez said Tuesday, “which means we now have to undo everything that was done.”
Gomez must wade very carefully and be thorough because it is his court that is under scrutiny. If a violation was found, it would have been on his watch, under his command in at least one of the trials on Jan. 25, and that of visiting Judge John E. Jones in another for Greene alone on Jan. 20.
After being convicted in January of extortion, conspiracy, conflict of interest and soliciting a bribe, Saldana, Greene and Roldan were supposed to have been sentenced on May 12—until the motion for mistrial forced an evidentiary hearing, of which Tuesday’s testimony was a continuation.
It bought the convicted trio some time.
For Greene, that means staving off a mandatory minimum of 11 years on a weapons conviction. It has yet to be determined how sentences would stack up for Saldana and Roldan.
The motion Gomez wrestled with in court Tuesday does not challenge the defendant’s guilt, just the process by which it was determined. But that technicality is serious, as a recent case from Georgia indicated. In that case, members of a defendant’s family were ordered out of the court by a judge. The defense appealed to a higher court and won a mistrial.
Gomez said that most cases he has reviewed since the motion was filed involve a judge taking similar actions. In this case, however, witnesses have said no judge was present in the courtroom, meaning the proceedings were off the record, which, Gomez has said, may mean the 6th Amendment would not apply.
Further complicating things, witnesses for the defense have told different, and often conflicting, stories about how they were excluded from court, who excluded them, and what was going on inside.
Two such witnesses, Greene’s pastor and his assistant from the Mt. Zion Church of God, have told such conflicting stories, full of “internal inconsistencies and inconsistencies with the affidavit,” as to raise red flags, Gomez said.
Perhaps most damaging of all, was recent testimony from Greene’s own brother, Curtis Frederick, who said one of the assistant defense attorneys apprised him of the 6th Amendment violation (and of a relevant high court ruling that was established) the day before during the jury selection itself.
Legally, if counsel knew of such a possible defect on the process, they would be obligated to bring it to the court immediately, Gomez said. “What is troubling is that counsel didn’t ever mention that there was something amiss,” he said.
“You are the petitioner. The question is whether you sat on some information,” Gomez told John-Baptiste Tuesday. “The question is if you didn’t raise it then, did you know?”
John-Baptiste, as well as Greene’s attorney, Thurston McKelvin, and Roldan’s counsel, George Hodge, all denied knowing of the glitch during the trial—directly contradicting the testimony of one of their chief witnesses.
Furthermore, Gomez pointed to the original trial of the trio on Dec. 14, in which some of the same witnesses who said they were excluded during trials in January sat alongside reporters and jurors and the public during jury selection. That, Gomez said, meant there was no policy or conspiracy to exclude anyone from the process.
“It’s about government action denying a defendant a constitutional right,” McKelvin said during the first hearing.
On Tuesday he denied that he or his legal team knew about the alleged violation at the time.
Judge Gomez gave all the attorneys from both sides two weeks to submit formal briefs staking out their positions and detailing their evidence. He has said he would pass the same information on to Judge Jones.
He will decide on the motion at that point. If he denies the motion, Saldana, Greene and Roldan again face sentencing and possible prison time.
“This is not an easy inquiry,” Gomez said Tuesday. “Whether it rises to the level of a 6th Amendment violation, this court will have to decide.”
