Lewis Carroll (aka Charles Dodgson) charmed the readers of Alice in Wonderland by placing logical fallacies in the mouths of bizarre characters. Poor Alice is barraged on every side by convoluted absurdities from twisted character like the March Hare, Tweedle Dum and Tweedly Dee and the Red Queen.
Alice in Wonderland comes to mind whenever I think of Alvin Clay. The Little Rock attorney has spent the past seven years knocking down the government’s house of cards only to see the structure rebuilt before his eyes. (Those who are not familiar with the story should consult this summary, written shortly before Clay’s June 2008 trial. To put it simply, the government of the United States has been using unsustainable allegations to strike back at an uppity attorney who didn’t know his place.
This past Friday, Judge Leon Holmes sentenced Alvin Clay, Donnie McCuien and Ray Nealy in a joint hearing at the federal courthouse in Little Rock. Before I give you the particulars we need to revisit some bizarre legal history.
The government’s case against Alvin Clay was aimed at Donny McCuien (the man who lured confused customers into a fraudulent real estate scheme) and Ray Nealy (the man who filled out fake loan applications while funnelling money in and out of his customer’s bank accounts). A long string of witnesses enumerated Ray and Donny’s bad acts and the documentary evidence was overwhelming.
Alvin Clay testified that Ray and Donny scammed him along with everyone else. Ray Nealy asked if they could use Clay’s Construction Company to do rehab work on five properties. Clay declined because he didn’t have the time to supervise the work. Nealy said he’d make sure the work was done.
Similarly, several out of state lending agencies entered into “stated loan” arrangements with Nealy and his clients. The buyers stated that the financial resources listed in the loan applications were legit and the banks took their word for it. Clay’s defense was that he made the same mistake.
Obviously, no one should have taken Ray Nealy’s word for anything; but bad judgment isn’t against the law.
The government got an all-white jury to convict Alvin Clay by arguing that the Little Rock attorney either knew, or should have known, that his partners were committing fraudulent acts. On that basis, the government could probably indict half the people in the American financial industry . . . but I digress.
Having convicted Alvin Clay, the government had to decide what to do with Ray Nealy. They had already promised Donny McCuien that he would get a 50% time cut for testifying truthfully at Clay’s trial. But Nealy hadn’t offered any assistance to the government because he intended to take his case to trial. One of Nealy’s attorneys assured me during Clay’s trial that her client had repeatedly assured her that Alvin had no knowledge of fraudulent loan documents.
Post-trial, Alvin Clay did a few cursory background checks on Donny McCuien and proved conclusively that virtually ever statement the scam artist made under oath was a demonstrable lie. McCuien posed as an ignorant burger flipper who had never bought or sold a home, didn’t own any carpentry tools, knew nothing about the rehab business, and had never done rehab work in his entire put-together. The truth was that he had spent the last decade doing little else and Clay produced a block-long string of witnesses to prove it.
Ray Nealy and his legal team followed these post-trial developments with keen interest. The government’s case against Nealy was rock solid: lots of credible witnesses and boxes brimming with damning documents. Nealy didn’t have a chance.
Yet, a few months ago, Nealy accepted a sweet plea bargain from the government. According to the deal, Nealy didn’t commit any felonious acts himself, but he knew Alvin Clay was breaking the law and failed to report him to the proper authorities. The technical term for this little crime is “misprision of a felony.”
Judge Leon Holmes wasn’t happy with the deal; it didn’t make sense. Listen to Holme’s opening remarks, quoted verbatim from the hearing transcript.
I’ve heard your case in chief in the trial against Mr. Clay. I have not heard Mr. Nealy’s defense, of course. But I’d like for you to explain to me why I should accept the plea agreement in this instance, from the government’s standpoint, moving from the charges, the conspiracy charges down to misprision of a felony. And I have every confidence that you and Mr. Webb and Ms. Stanley have a good reason for it, but I have no idea what it is. So I would like for you to tell me what it is that you can tell me. There may be things that you can’t tell me. But I need to hear something that makes me see that this is a plea agreement that’s in the public interest and something that I should accept.
Assistant US Attorney Steven offered a rambling non-explanation:
Since the Clay trial, we have been, I would say, re-evaluating our case and weighing strengths and weaknesses. We have spoken to Mr. Nealy, and because of the – I wouldn’t say the facts of our case have changed, but because of things that have come up, we felt like it was in the best interest of both parties to enter into this agreement. We are confident in our case. It’s kind of hard for me to put it into words. I probably am not doing a very good job of articulating it. And we’ve, again, weighed the strengths and the weaknesses, and based upon those and in talking to Mr. Nealy and his attorneys, we just feel that it would be in the best interest of the government to proceed with this information.
Notice that Judge Holmes asked why the plea deal with Nealy was in “the public interest”; Snyder merely argues that it is in “the best interest of the government” (hardly the same thing.)
Leon Holmes was unimpressed.
I think you know what my question is. You put on a case in the Clay trial, and without hearing Mr. Nealy’s defense, I mean, the case in chief was very compelling, and the jury convicted Mr. Clay of conspiring with Mr. Nealy. And really and truly, the evidence was stronger against Mr. Nealy than against Mr. Clay. I think everybody knew that. That was part of the defense, that the case that you put on was primarily aimed at Mr. Nealy, not Mr. Clay. So now that we have Mr. Clay convicted, we’re in here pleading Mr. Nealy to a substantially lesser offense. And it’s not that I’m going to reject it, and I never have rejected. I’ve been here four and a half years. I have not rejected a plea agreement. I let the lawyers try their cases and do their things, and you all are good lawyers, and Ms. Koehler and Mr. Perroni are good lawyers, and I’m confident there’s a good reason for it. But I am bothered some by it. Part of it is the fairness of the whole thing, because we have different parties being treated substantially different, at least on what’s been presented to me, not based on anything related to culpability. So if there’s anything else you can tell me, tell me . . . (my emphasis)
Mr. Snyder made a second attempt to explain why it was in the public interest to cut Ray Nealy a sweetheart deal: “Well, I would say some things have come to our attention since the Clay trial that possibly could be detrimental to our case.”
Judge Holmes gently interrupted. “Do they have to do with a key witness?”
“Yes, sir,” Mr. Snyder admitted. In the entire hearing, a single explanation was offered for the government’s plea deal with Ray Nealy: Donny McCuien, the government’s star witness, was no longer credible under oath.
Judge Holmes may have felt like a character out of Alice in Wonderland but he couldn’t address the elephant in the room without subjecting the US Attorney’s office to embarrassment and ridicule. The government’s plea deal was completely unrelated to problems with their case against Ray Nealy. As Mr. Snyder freely acknowledged; the case against the former football player remained solid.
Why was the government folding if it held four aces?
Mr. Snyder’s reasoning came into focus late in the plea hearing when Judge Holmes reminded the defendant that he could still reject the plea offer and take the case to trial. “At trial,” Judge Holmes reminded the defendant, “the government’s witnesses would have to come into open court and testify in front of you and your lawyer, your lawyer would be allowed to cross-examine any government witnesses, to object to evidence the government offered, to offer evidence on your behalf, and to compel witnesses to come to court. Do you understand that?”
Ah, there’s the rub. Nealy’s attorneys had warned Mr. Snyder that if the government took their client to trial they would call Donny McCuien as a defense witness. The government had no intention of calling McCuin; with all the other witnesses and the boxes of documentary evidence they didn’t need him.
Nealy’s attorneys couldn’t win at trial and they knew it. But they could certainly embarrass the government for putting a pathological liar on the stand in the course of the Clay trial. Mr. Snyder and friends were desperate to free themselves from the albatross with a Scottish surname who was making life miserable.
Besides, the government never cared a fig about Nealy and McCuien–the goal of this case had always been to separate a hard-charging black attorney from his law license. Ray and Donny were simply a means to that end.
Which brings us to Friday’s sentencing hearing. Judge Holmes sentenced all three men together because he wanted to make a point. Here, is the summay of the hearing Alvin Clay emailed me on Friday.
1. Alvin Clay – sentenced to 5 months in prison; the report date is October 13, 2009.
2. Donny McCuien – sentenced to 5 to 6 months in prison; (one year with a 50% reduction for giving “truthful testimony”).
3. Ray Nealy – sentenced to 3 years probation with a 3 month community confinement.
Judge Holmes couldn’t resolve his Alice in Wonderland dilemma without violating the canons of simple logic, but he did the best he could. His challenge was to be fair to Alvin Clay without embarrassing the US Attorney’s Office, so he gave Clay the lightest available sentence and made sure that McCuien received the same penalty.
Unfortunately, Judge Holmes couldn’t let the government off the hook without claiming (hopefully, with his fingers crossed under his black robe) that the least credible witness in Arkansas history had testified truthfully at Clay’s trial.
Having given Clay and McCuien a slap on the wrist, Judge Holmes had no choice but to let Ray Nealy off with no prison time at all. True, Nealy will spend three months in a federal halfway house, but that’s the extent of the damage.
There’s just one problem: unless this scam is exposed and reversed, an innocent black attorney will lose his right to practice law. I have no problem with Nealy and McCuien getting off easy (like hundreds of thousands of others, they were taking advantage of an incredibly lax lending environment). But the Alice and Wonderland logic of a patently vindictive prosecution continues to escape me.