Pubdate: Sat, 17 Jan 2004 Source: Orlando Sentinel (FL) Copyright: 2004 Orlando Sentinel Contact: http://www.orlandosentinel.com/ Details: http://www.mapinc.org/media/325 Author: Henry Pierson Curtis Bookmark: http://www.mapinc.org/corrupt.htm (Corruption - United States) FEDERAL JUDGES BLAST TRIAL'S PROSECUTION Drug Case's Missing Evidence Called Unfair Two federal judges have accused the U.S. Attorney's Office in Orlando of denying a fair trial for a businessman who was convicted three years ago of drug dealing and other charges. Prosecutors repeatedly withheld favorable evidence from the defense and failed to disclose that witnesses lied on the stand, according to a highly unusual and extremely critical study of the case prepared by U.S. Magistrate David A. Baker. Baker also attacked prosecutors for refusing to supply him with documents that could upend the conviction and lead to a new trial for Antonino "Nino" Lyons, a well-known nightclub owner from Brevard County. "The absence of whole categories of information renders it virtually impossible to reassure all concerned that the defendant received a fair trial," reads the 66-page report that was released Wednesday. "The government's refusal to produce the documents, despite court orders to do so, leaves the court with nothing but an inference that they indicate prosecutorial misconduct or other improprieties." Lawyers and others in the federal courthouse in Orlando say they have never seen a similar review of a case. Lyons, who also owned clothing stores in Orange and Brevard counties, was convicted in November 2001. The former All-American High School basketball player had served as vice president of the NAACP chapter in Brevard. Numerous relatives and church members drove daily to Orlando to show support during his trial. Sentences reduced No drugs were seized during the investigation and no wiretaps or tape-recordings were presented as evidence that Lyons, 42, dealt drugs. Information that he sold more than $6 million of cocaine came from 26 convicted drug dealers, most of whom received reduced sentences as rewards for testifying. He also was convicted of selling bogus designer clothing, and of carjacking for commandeering a car to chase a man who robbed him of a duffel bag of cash. Last April U.S. District Judge Gregory A. Presnell, who handled the trial, ordered Baker's study to settle fairness questions raised by Lyons' defense lawyers. Baker's report described more than 10 instances of withheld evidence, which Presnell described as "additional evidence of prosecutorial misconduct." On Friday the government agreed to release all the missing documents to the judges. They must be submitted by Jan. 20. "When the court believes there is prosecutorial misconduct, the court under the law can see those documents," Chief Assistant U.S. Attorney Jim Klindt said Friday afternoon. "Now that it is very clear that the court is focusing on prosecutorial misconduct, we intend to turn over all of those documents." Lyons, who awaits sentencing, remains in the Seminole County Jail. He could face as long as life in prison. 'Upsetting and shocking' "The story of this case is that the government should be held responsible for the manner in which they put together this prosecution," said Lyons' lawyer, Gregory W. Eisenmenger of Melbourne. "This was a case that was concocted completely on the testimony of convicted felons, telling the government what it wanted to hear. It becomes extremely upsetting and shocking that the government knew these people were not telling the truth." The government denies intentional wrongdoing. "We have conceded from the outset that mistakes were made in this case. We did not turn over some things we should have," Klindt said Friday. "We're disappointed that the court views our mistakes as prosecutorial misconduct because prosecutorial misconduct suggests intentional or purposeful wrongdoing." Assistant U.S. Attorney Anita Cream said she destroyed all notes and records of the forfeiture phase of Lyons' trial, which has yet to occur, according to Baker's report. She said she rarely took notes in pretrial interviews, preferring to rely on memory and agents' notes. But the report noted that Cream could not remember whom she interviewed and that no records of any kind existed for one of the witnesses. "The question therefore remains -- how did the government know how to call [inmate] Clements as a witness?" Baker wrote. "If AUSA Cream relies on agent's notes and no agent's notes exist, how could she prepare for the examination?" Information kept from Lyons included a statement from one jailed witness to a federal agent that "some of the guys didn't really know Nino but they made up stories," the report says. Assistant U.S. Attorney Bruce Hinshelwood, who the report said entered a secret deal with a witness, was faulted for not notifying the court when the man lied about the agreement under oath. The witness was promised a reduced sentence for testifying but denied receiving the promise. "It is the obligation of the prosecutor to correct that false impression," Baker wrote, calling Hinshelwood's silence "the appearance of prosecutorial misconduct." Previous rulings It is the second time in the case that Hinshelwood has been accused of prosecutorial misconduct. The 11th Circuit Court of Appeals in Atlanta cleared him of the earlier accusation but, at the same time, ruled he had withheld evidence favorable to Lyons. That ruling also was the second time that the higher court overturned rulings by Presnell in the case. The first came when Presnell ordered Lyons' release on bail. The second came in 2002 when he ordered a new trial on grounds of prosecutorial misconduct. - --- MAP posted-by: Larry Seguin