Inside the Capitol

Saturday, August 21, 2004

Prosecutorial Vindictiveness

SANTA FE – A second federal judge has had the courage to tell it like it is when it comes to overzealous prosecution by the U.S. attorney’s office in Albuquerque.
Senior U.S. District Judge John Edwards Conway has dismissed a case against Michael Payne for prosecutorial vindictiveness. Payne was a co-defendant in a case against a Roswell counterterrorism training school owner David Hudak, who was acquitted last November.
Payne, a one-time Army Ranger and decorated Special Forces soldier, held top-secret clearance before retiring three years ago to become training program manager for Hudak’s High Energy Access Tools, Inc. Two years ago, a federal indictment alleged one of their programs was being conducted without a license.
Hudak was jailed without bail for a year, while the U.S. attorney’s office tried to put together a case. Payne, with a wife in graduate school and six children to support, faced a potential 50-year prison sentence, if convicted. He entered a guilty plea, with sentencing delayed until after testifying in Hudak’s case, in order to be able to continue work and support his family.
After hearing weeks of testimony last fall, a jury cleared Hudak of all charges and asked the judge to let Payne withdraw his guilty plea. Conway delayed a decision “hoping against hope” that the U.S. attorney’s office would dismiss the charges.
But the prosecutors were unyielding, prompting Conway to accuse them of “sheer vindictiveness” and dismiss the case. The U.S. attorney’s office says it is disappointed and has not decided how or whether to proceed further.
Judge Conway, however, predicts prosecutors will quickly reach out to the Justice Department, seeking removal of “this liberal judge.”
Lawyers, statewide, are sure to be getting a huge laugh out of Conway’s characterization of himself as liberal. The judge, a former state Senate Republican floor leader from Alamogordo, has long been known for his conservative opinions, including rulings in the Hudak case.
Most of the rulings that kept Hudak in confinement, without bail and without contact even with his family, were Conway’s, as were defense motions that were consistently rejected. Conway also was the judge who kept Los Alamos scientist Wen Ho Lee behind bars, without bail, and under some rather harsh conditions.
Conway’s reversal and his chastising of the prosecution in this case is reminiscent of federal Judge James Parker’s about-face in the Wen Ho Lee case three years ago. When the government acknowledged it didn’t have a case against Lee and dropped all 59 counts against him except one, Parker delivered an impassioned apology to Dr. Lee for his treatment by the government.
But even after Parker’s apology, the government continued after Lee in every way it could. And that, dear friends, was when the decisions were being made by Energy Secretary Bill Richardson, Attorney Gen. Janet Reno and President Bill Clinton. Does anyone doubt John Ashcroft’s Justice Department will be any less vindictive?
Judge Parker was no bleeding heart either. His previous rulings in the Lee case had gone against the defendant, for which he apologized. When Judge Conway withdrew from the Hudak case shortly before trial, he recommended that it be given to any other federal judge except Parker, possibly because he felt Parker might be too lenient.
The prosecutorial vindictiveness also continued with Hudak. After being fully acquitted, he was not released from confinement, pending a determination of whether the Canadian was in this country legally. When the Immigration and Naturalization Service ruled in Hudak’s favor, he was grudgingly released, but the government refused to return Hudak’s business assets.
Ten months later Hudak is still fighting that battle, with the court now having imposed a time limit on the prosecutors.
It is nice having the federal government so interested in protecting us, but sometimes that protection can go way, way too far.


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