Alvin Clay, Part 3: “Who polices the police?”

Alvin Clay and Roy Lee Russell

                                              Alvin Clay and Roy Lee Russell

Alvin Clay, Part 3: “Who Polices the Police?”

Alvin Clay knew he was facing a steep climb.  His client, Roy Lee Russell, was guilty as charged.  Russell had testified that Steve Block sold him drugs.  Later, also under oath, he recanted that testimony.  On one of these occasions he was lying.

Clay had two choices: he could go through the motions like a sensible attorney, or he could put the Arkansas State Police, the FBI and the Department of Justice on trial.  The only way to win was to argue that everybody involved in Operation Wholesale was either lying or protecting a liar.

The fancy term for Clay’s strategy is jury nullification-the theory that a higher justice demands that, in some instances, the law should not be followed.  When you’ve got a street hustler going up against the American government, it was a hard argument to make.

The best option was to cut Russell the best deal possible.  Assistant US Attorney, Bob Govar was interested.  Like everyone associated with Operation Wholesale, Govar was furious with Russell, but the veteran prosecutor knew that the Russell-Richardson fiasco was a national scandal in the making.  A conviction was a near certainty; but the Government didn’t want Roy Lee Russell on the stand.  Only God knew what the guy might say or who might believe him.

On the verge of trial, Govar offered Russell eight months in exchange for a guilty plea-a clear sign of desperation.  Clay was overjoyed.  He was prepared to go to the wall for his client, but eight months for perjury and obstruction was an unimaginably good deal.    

Clay huddled with his client.  Russell nodded his approval.  Clay sighed with relief.

Then things got bizarre. Perjury and obstruction of justice are serious charges, Judge Howard reminded Govar-why was the government so reluctant to move to trial.  Then, to show he hadn’t prejudged the case at bar, Howard told Russell that if he was innocent he should make his case to a jury.

 

Judge George Howard as a young man

When Judge Howard was appointed to the Eastern District of Arkansas in 1980, he was the first black federal judge to serve in the state.  Not until his death in 2007 was another black federal judge appointed in Arkansas.  In his early years, Howard had been an aggressive civil rights attorney famous for his cooperative relationship with the NAACP. 

Judge Howard was in his mid-seventies when Roy Lee Russell went to trial.  Five months earlier, he had presided over a high profile case in which special prosecutor Kenneth Starr had accused Susan McDougal, a close friend of Bill and Hillary Clinton, of criminal contempt after she refused to testify to two grand juries.  Howard had provided defense counsel with ample opportunity to accuse Starr of mounting a malicious prosecution. 

McDougal’s attorneys were using the same jury nullification strategy Alvin Clay contemplated.  Like Russell, McDougal was technically guilty.  Nonetheless, defense attorneys were able to convince the jury that their client was more sinned against than sinning and their client was acquitted.

 Alvin Clay faced a far stiffer challenge.  In drug cases, Howard (like most judges) displayed a clear pro-prosecution bias.  In his later years, he was inclined to wrap himself in the American flag by lecturing juries on the glories of American Democracy-a clear assist to the government, especially in drug cases. 

 

              

Susan McDougal                                               

  

Kenneth Starr and his Nemesis

          

Conservatives had criticized Judge Howard for allowing the defense to put the government on trial during the McDougal case.   Roy Lee Russell provided the perfect opportunity for Howard to reassert his law-and-order credentials and he intended to make the most of it.

When Judge Howard challenged Roy Lee Russell to fight like a man, Alvin Clay could feel his client stiffen.  Russell announced that he was no longer comfortable with the eight month plea deal; he wanted to fight.  Clay took his client aside and tried to reason with him.  “This is a great deal for you,” Clay remembers saying.  “I’ll do my best if we go to trial, but your chances aren’t good.”

Russell was adamant.  He’d rather serve ten years in the federal penitentiary than take the fall for Clayton Richardson, the Arkansas State Police and the FBI.  “I told all them people this wasn’t a good operation and they know I’m telling the truth.  I want everybody to hear my side of this thing.”

“All right, Roy,” Clay conceded with a shrug of resignation.  “If that’s what you want; that’s what you’ll get.”

Clay filed a pre-trial motion to have the case dismissed on procedural grounds.  Judge Howard glared at the young attorney in amazement and asked him if he was serious.

An article in the Arkansas Democrat-Gazette revealed just how daunting Clay’s task had become.  The Little Rock attorney spent the first day of trial making a simple point: the Arkansas State Police received little baggies of crack cocaine from Clayton Richardson, but only Richardson knew the source of the evidence he turned in.

It followed logically that endless testimony about “chains of custody” and “checks and balances” was meaningless.  Only Richardson knew what was going on.

These arguments were utterly lost on the Democrat-Gazette reporter.  She reduced Clay’s nuanced argument to a vague notion that “some of the defendants were being framed by police who pocketed money set aside for drug buys.”

No matter how hard Clay worked to show the jury how easy it would have been for Clayton Richardson to fake cases, the media coverage didn’t improve.  Roy Lee Russell remained a “turncoat” and a deceiver who was making it hard for the government to rid the streets of drug dealers.

Prosecutor Bob Govar’s assured the jury that Operation Wholesale had been a pristine operation until Russell started lying.  The media ate it up.  No one could understand the simple fact that neither Bob Govar, FBI agent Steven Pinkstone or Sgt. Michael Hall of the Arkansas State Police could tell if Roy Lee Russell was lying.  Perhaps the implications of getting this simple point were too troubling. 

Russell’s trial showed that Russell had no idea where Clayton Richardson was getting the buy money and that he never read Richardson’s sketchy field reports.  Russell wasn’t aware that innocent people were being charged until he was asked to testify to the grand jury. In the Steven Block case, Russell admitted, he had caved to pressure from Richardson, the FBI and federal prosecutors.  After that, he told it straight.

In his testimony, Russell kept referring to the legitimate sting operation he had worked with Officer Lloyd Franklin a decade earlier.  “I have no remorse for the people that they arrested or got convicted in the first operation,” he said, “but this operation was quite some different and I just couldn’t live with myself so I know I’m not going to be on this earth forever, and I want-I got to meet my maker one day and I want to have a good understanding with him.”

A stream of defense attorneys testified that, contrary to the government’s claim, they had never discussed giving Roy Lee Russell a nickel in exchange for his testimony.

Most of the people targeted by Operation Wholesale were street hustlers suspected of dealing drugs.  Few of them, Russell said, were personal acquaintances.

“Wasn’t nobody familiar with Trooper Richardson,” Russell explained, “so they would not sell us any drugs.  And Trooper Richardson said, well, that’s okay . . . I’ll just give them a charge.”

When the two men arrived in a new town, Russell testified, they would make numerous buys from one or two conspicuous dealers.  Russell had no problems identifying these people or testifying against them.  All the drugs turned into the authorities (after being broken down into smaller units) came from these initial buys.  In other words, most of the people charged in any given community hadn’t sold drugs to either Clayton Richardson or Roy Lee Russell.

“Mr. Russell, you knew that was wrong?” Clay said.

“Yes sir,” Russell admitted.  “But like I say, I’m not going to dispute no state police.  I’ll be in more trouble than I’m in now if I resist that man . . . He said he’s not fixing to lose his career over nothing like this.  He said they are going to take his word over mine anyway.”

The tension in the courtroom soared when Alvin Clay addressed the racial elephant in the room.  “Mr. Russell, what did all of the people that Clayton Richardson falsely accused of selling drugs have in common?”

“They all was suspected drug dealers,” Russell said.

“What else?  Were they all males?”

“They was all black males,” Russell answered.

Everybody got the point.  Operation Wholesale was designed from the outset to incarcerate poor black males.  No one else was arrested because no one else was targeted.

“There is no way I can overstate just how acrimonious things got in the courtroom,” Clay tells me.  “The only way I could defend my client was to make everybody involved in this case look bad.  I knew this would displease everybody on the government’s side; but I didn’t know how much.”

In his closing remarks, Clay argued that Operation Wholesale provided Clayton Richardson with the motive and opportunity to defraud the government.  This wasn’t about one bad cop; it was about a fundamental lack of democratic accountability in the war on drugs. 

“Who polices the police?” Clay asked the jury.  Then, in case they didn’t get the point, he answered his own question.  “You, the men and women of the jury, you police the police.”

The Democrat-Gazette reporter covering the trial made light of Clay’s question.  “Richardson’s supervisors,” she assured her readers, proved that “‘every penny’ of the drug-buy money was accounted for, and that it was monitored through a stringent system of checks and balances.”

Clay could only shake his head in wonderment.  Hadn’t he proven conclusively that the government’s system of checks and balances was useless so long as nobody was monitoring Russell and Richardson?  If the reporter couldn’t understand that, the jury wasn’t likely to do any better.

In the end, Roy Lee Russell was convicted of perjury and obstruction of justice.  That didn’t mean Russell was lying.  The government couldn’t prove that point and didn’t have to.

This issue surfaced in a bizarre fashion at the conclusion of Russell’s sentencing hearing.  On that occasion, Russell was defended by two attorneys with only a superficial grasp of the facts, but the trial transcript convinced them that Russell was taking the fall for the FBI and the department of justice. 

The government argued that, for the purposes of sentencing, all the drugs from all the cases that had been dismissed should be applied to Roy Lee Russell.  This assumed that the cases were legitimate even though the jury had never been asked to address that issue. 

FBI agent Steven Pinkstone insisted that Russell was lying.  He had no evidence to support this claim: he just knew it.

To everyone’s surprise Bob Govar appeared to argue that Russell, not Richardson, had faked drug cases on innocent people.

“I can’t even begin to estimate, Your Honor, the harm that this has done to the reputation of the FBI or the Arkansas State Police,” Govar began.  But Govar also defended “All these people that Mr. Russell had falsely arrested and indicted.  I mean, I can’t imagine a more clear and cogent case of violating other people’s civil rights than that right there; having them arrested, having them indicted, when all he had to do was tell the truth and say these people didn’t sell drugs, I didn’t buy drugs from them.  But he didn’t do that.”

The reporter for the Democrat-Gazette understood Govar’s comment to be hypothetical: even if Russell was telling the truth he was still guilty.  But a careful study of the hearing transcript rules out this reading.  Bob Govar was arguing that Russell’s lies had led to the arrest of innocent people.

 No matter how you parse Govar’s statement it makes no sense.  Russell had refused to testify against the innocent.  If Russell was telling the truth about Operation Wholesale, the State Trooper was lying.  But that didn’t deter Mr. Govar from taking dozens of Operation Wholesale cases to trial on Richardson’s uncorroborated testimony.

Asked if he had anything to say to the Court before the sentence was handed down, Roy Lee Russell launched into a rambling appeal.  Trooper Richardson “didn’t have no idea who these people was,” Russell asserted, “merely because he wasn’t never there, and it’s quite natural that he’s not going to admit to the court, because I assume it would be some kind of action took against him, like it was against me.”

But things hadn’t worked that way and Russell was wondering why.  “I feel like it really ain’t been investigated by the FBI,” he told Judge Howard. 

The Judge wasn’t about to order an investigation for an informant and a posse of accused drug dealers.  Russell was sentenced to ten years.  “I think it will take Mr. Russell out of circulation for a reasonable period of time,” Howard concluded, “thus affording him an opportunity to do some reflective thinking and become rehabilitated.”

From Bob Govar’s perspective, it didn’t matter whether Russell was lying or telling the truth.  Russell had raised serious doubts about the credibility of Bob Govar’s line of work.  All the people targeted in the sting were suspected of drug trafficking.  These were bad apples and they didn’t deserve protection from Alvin Clay or anybody else.  From Govar’s perspective, this was war and people like Alvin Clay needed to decide whose side they were on. 

It was one thing to accuse a small town police department of corruption; but you don’t aim that accusation at the federal government.

It was one thing for a lawyer to go to the wall for someone like Susan McDougal-she was a well-connected woman of means.  Roy Lee Russell was just a street hustler hired to finger other street hustlers.  So what if the defendants didn’t sell to Russell?  If they were truly innocent they wouldn’t have been on the government’s list.

Alvin Clay was dangerous for the same reason Susan McDougal and Roy Lee Russell were dangerous-they weren’t motivated by naked self-interest.  By refusing to testify against the Clintons, McDougal had destroyed Kenneth Starr’s credibility.  Thanks largely to the hard-charging Alvin Clay, Operation Wholesale had done serious damage to the reputation of the FBI and the federal government.  

Thanks to a compliant media and the complete absence of advocacy organizations, the government had dodged a bullet . . . this time.  But Bob Govar knew how easily the government’s house of cards could come crashing down. 

This was a sin Bob Govar could not forgive.  Nor could he forget.