Monday, March 12, 2012 at 6:05 a.m.
Buju Banton's legal team let loose in documents filed Friday and said the government's "presentation of the facts... is untethered to the record and is so riddled with inaccuracies and misleading statements that it would be nearly impossible to address all of them."
Before delving further in, here's a quick recap of what's being argued and how the case has arrived at this point for those not familiar (read all about it in our recent feature on the case).
Buju was found guilty of three charges, two drug counts and a gun count. The judge, however, threw out the gun count because Buju never met or talked to James Mack -- the man with a gun stashed in his car who was arrested trying to buy several kilos of coke. Buju was nowhere near the drug deal and seemingly didn't know that it was taking place, so he had no connection to the gun in question.
Then Buju's attorney, David Oscar Markus, appealed the drug charges on grounds that the Grammy-winning reggae artists had been entrapped by Alex Johnson, a Colombian coke transporter
turned snitch who has earned more than $3.3 million in untaxed income for setting people up yet filed for bankruptcy in 2010. Markus raised numerous other points in the appeal, including speedy trial concerns and prosecutorial vindictiveness.
That didn't sit well with the Department of Justice. So when it got a chance to respond to the appeal, it decided that it would file its own appeal arguing that the judge was wrong in throwing out the gun charge and that an additional five years should be tacked onto Buju's decadelong sentence. This move seems like a demonstration of prosecutorial petulance, if not vindictiveness.
Friday was the deadline for Buju's defense team to respond to this most recent development, and it did so in a biting 63-page brief that highlights the absurdity of letting confidential informants like Alex Johnson build cases.
Within the first page of the argument, Buju's lawyers write, "In the 57 collective years of law practice by the signatories to this brief, we have yet to receive an appellate brief that so fundamentally misrepresents the facts as the Government's brief does."
Similar gems are laced throughout lengthy footnotes.
Much of the defense's argument is that the government cherry-picked small portions of evidence that indicate guilt and ignored testimony from its own witnesses that contradicts its arguments.
Buju's legal team breaks down the prosecution's argument point by point. For instance, the government said in its appeal, "Although [Buju] was on tour for the next four months, he kept in touch with Johnson by telephone."
Buju's legal team replies: "The record establishes that [Buju] did not 'keep in touch with Johnson by telephone.' It was Johnson who repeatedly attempted to keep in touch with
[Buju] (with limited success)... Throughout this time period, Johnson relentlessly pursued [Buju] by calling him repeatedly. Often, [Buju] would not take the calls nor would he call back."
Later on, the government says that "the evidence established that [Buju] was an experienced drug trafficker."
The reply: "The evidence did not establish that [Buju] was an experienced drug trafficker. Both the government's primary witness/informant and the case agent testified that there was no evidence that [Buju] had ever done a drug deal before... And he had no prior record."
After nine pages of this type of systematic breakdown, Buju's lawyers reiterate the arguments that a "nefarious government agent" entrapped Buju; that the government never proved anything indicating Buju's guilt; that Buju had his constitutional right to a speedy trial denied; and that the original judge was right in tossing the gun charge.
A panel of judges from an appellate court in Atlanta will be left to evaluate these arguments and hand down an ultimate decision. That'll take about a year.
It's sure to be an interesting debate among the judges. Keep in mind that it took two trials for the government to get its conviction -- the first ended in a hung jury -- and it needed to add two charges between the trials to shore up its argument.
The criminal history of the informant, Johnson, and his reliance on getting Buju drunk to discuss drugs doesn't bode well for the government's argument. Perhaps most important is that the appellate judges will be left to ponder Johnson's reliability as the main witness.
Buju's legal team uncovered a previous case in which the judge said during sentencing that she "found Mr. Johnson's testimony not to be entirely truthful based upon Mr. Johnson's extensive criminal history, his career of defrauding others, his financial incentives to provide testimony favorable to the government, and his demeanor during his testimony."
This information was blocked from being presented to Buju's jury, but it's well delineated in the appeal.