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Three men convicted in 1994 for their roles in a notorious D.C. crack cocaine ring and each sentenced to more than 25 years behind bars may get a shot at early freedom because of alleged misconduct by the prosecutor. G. Paul Howes, who prosecuted the high-profile murder and narcotics case as an assistant U.S. attorney, is accused by defense lawyers of paying government witnesses in the D.C. Superior Court matter with funds earmarked for a separate case in federal court. Howes is under fire by the D.C. Public Defender Service for also allegedly making an under-the-table deal with a key witness and allegedly paying this witness for his cooperation while that person was incarcerated. The case at issue involved Javier Card, Jerome Edwards, and Antoine Rice, who were found guilty by a D.C. jury of murder, kidnapping, and weapons charges. The six-month trial garnered numerous headlines because a D.C. cop named Fonda Moore was also charged and subsequently pleaded guilty to taking part in a revenge killing. The revelations in United States v. Javier Card mark the second time that Howes, who left the U.S. Attorney’s Office in 1995, has been accused of misusing federal witness money. Last year, four men convicted of running a crack cocaine enterprise known as the Newton Street Crew in the Mount Pleasant area of the District had their life sentences dramatically reduced in a deal with the U.S. Attorney’s Office because of misconduct attributed to Howes, who was the lead prosecutor in that case. Sandra Levick of the Public Defender Service, Rice’s lawyer in the Superior Court case, has asked a D.C. judge to throw out her client’s conviction because of “outrageous governmental misconduct.” Levick’s 25-page motion outlines numerous occasions in which government witnesses in Card were paid with money under the caption of three separate Newton Street cases in U.S. District Court for the District of Columbia. The motion claims Howes paid out more than $10,000 in “fraudulent” witness fees and paid a government witness who was incarcerated at the time — a practice prohibited by federal law. The defense motion also claims that Howes cut a “secret” deal with that same government witness. The arrangement, according to the motion, allowed Howes to claim to the jury that his informant had no reason to lie because he had already pleaded guilty to gun and drug charges that carried a mandatory five-year prison term. After the witness testified and the Card defendants were convicted, this witness withdrew his guilty plea. Howes did not object and the government moved to dismiss the charges. Howes, along with his Newton Street co-counsel Jeffrey Ragsdale and Lynn Leibovitz, were investigated in 1996 by the Department of Justice’s Office of Professional Responsibility for their handling of the Newton Street case. Ragsdale and Leibovitz were exonerated, according to the U.S. Attorney’s Office. The OPR report, which was completed in 1998, remains under seal by a federal court order. For the past two years, defense lawyer Levick has repeatedly asked a federal judge to release portions of the report that reference Card or deal with any witnesses for both matters. The U.S. Attorney’s Office says the 2002 Newton Street deal to reduce the defendants’ sentences was made in the interests of “judicial economy.” The office argued in a November 2001 court brief that it turned over all witness vouchers that were relevant, and that Levick has no right to the DOJ report because it was an internal investigation. But last month, U.S. District Judge Colleen Kollar-Kotelly ruled that she needed more information from the government and ordered the prosecutors to explain in detail by July 17 why the DOJ report and other Newton Street documents should remain under wraps. Also last month, Superior Court Judge Herbert Dixon Jr., who presided over the trial in Card, ordered the U.S. Attorney’s Office to respond by Sept. 10 to Levick’s motion asking him to throw out Rice’s conviction. The possibility that another important criminal case could collapse over allegations involving a single prosecutor raises questions about supervision within the 350-lawyer U.S. Attorney’s Office. Some former prosecutors say experienced litigators like Howes were given a lot of leeway in how they managed a case and that the use of witness vouchers were rarely, if ever, scrutinized. The former prosecutors add that vouchers may at times also be legitimately paid to a prospective witness even if the witness ultimately is not called to testify in court. In federal cases, the government can pay witnesses who are not incarcerated $40 a day for time spent being interviewed by investigators and testifying in court or before the grand jury. The government sometimes will also pay for food, transportation, and lodging if a witness does not live in the general area. Prosecutors are not allowed to use the money as an enticement for favorable testimony or as an assurance that the witness will be available when needed. Those who managed the U.S. Attorney’s Office while both cases were prosecuted say there was initially no concern over how Howes handled the cases. “We viewed both the Javier Card and Newton Street [cases] as successful prosecutions,” says D.C. lawyer David Schertler, who ran the Homicide Section of the U.S. Attorney’s Office and was Howes’ direct supervisor at the time both cases were tried. “You hate to see anything happen after the fact to undermine those prosecutions.” Eric Holder Jr., who was U.S. attorney at the time the cases went to trial, says he requested the Justice Department investigation “once it was brought to my attention the possibility of misconduct on the part of one of my prosecutors. “Obviously the end result here, to say the least, is an unfortunate one,” says Holder, who went on to serve as deputy attorney general and is now a partner at Covington & Burling. Holder says he still has confidence in how supervisor Schertler and line prosecutors Ragsdale and Leibovitz handled the Newton Street prosecutions. As for his thoughts on Howes, Holder says: “I have a very different opinion of him.” Channing Phillips, chief of staff to current U.S. Attorney Roscoe Howard Jr., declines comment, citing the pending litigation. Phillips does note, however, that an officewide memo reminding prosecutors of the rules and regulations concerning fact-witness vouchers was issued in 1999. Leibovitz, who is now a Superior Court judge, and Ragsdale decline comment. Ultimately, it will be D.C. residents who must deal with the possible repercussions. Says one criminal defense lawyer who represented one of the defendants in the Newton Street case: “I don’t look forward to those guys returning to the streets.” Today, Howes is a partner in the San Diego office of plaintiffs firm Milberg Weiss Bershad Hynes & Lerach. For the past year and a half, Howes has represented the University of California in a class action suit against the Enron Corp. for lost investments. Howes’ bar record is spotless in two of the three jurisdictions where he is licensed to practice law — California and the District. In New Mexico, however, according to court records, the state Supreme Court publicly censured Howes for “communicating” with a criminal defendent whom he knew was represented by counsel. Howes did not answer requests for comment. Patrick Coughlin, head of Milberg Weiss’ West Coast litigation practice and a former colleague of Howes at the U.S. Attorney’s Office in the District, says there have never been questions raised about Howes’ conduct in private practice. “He’s always been ethical in his work with us,” says Coughlin, adding that the firm was aware of the misconduct allegations in the Newton Street case. ‘TRIPLE DUCT TAPE MURDERS’ The Newton Street and Card cases were joined from the start. In October 1990, police found the bodies of three men — two in the District and one in Maryland. They had been handcuffed, their heads wrapped in duct tape, shot numerous times at close range, and left in their vehicles. Cops called it the “triple duct tape murders.” Two weeks later, Billy Ray Tolbert was found dead in the driver’s seat of his white Acura Legend under the 11th Street Bridge. He, too, had been duct-taped and shot multiple times in the head. At the time, the city was experiencing an outbreak in crack-cocaine-related violence, and specialized task forces were asked to look into the murders. After a two-year investigation, the government claimed the triple murder was committed by the home-grown Newton Street Crew in Northwest D.C., while the Tolbert murder was tied to a newly organized transient cocaine ring operating in the Southeast quadrant of the city. The strategy, according to prosecutors who worked in the U.S. Attorney’s Office in the early 1990s, was to show a connection between violent crime and drug trafficking in order to make a larger conspiracy case against multiple defendants. “This was a far more effective way of bringing down a drug gang,” Schertler says. “Paul Howes was able to do this very effectively and very well and we had a lot of confidence in his abilities.” Howes, a member of the Homicide Section whose law firm biography says he served as a Marine in Vietnam, was picked to lead the prosecution on both cases. “At that time, Paul was regarded as a very seasoned, experienced prosecutor,” adds Schertler, noting that Howes served on the team that successfully prosecuted notorious D.C. drug kingpin Rayful Edmond III and his crew. Former colleagues describe Howes as a loner within the office, a person who savored working with cops and was driven to succeed. But with Howes came controversy. For one, in 1988 Howes was accused by a defense lawyer of contacting her client after knowing that the person was represented. Howes claimed it was the client who reached out to him. The matter sparked numerous proceedings over the authority of state bars and the right of the Justice Department to police its own lawyers. The indictments against 26 defendants tied to the Newton Street Crew were handed up in July 1992 by a D.C. federal grand jury. A week later, indictments were announced in Superior Court against Card and seven other defendants. According to court papers, Card, a Panamanian national, ran a crack cocaine business out of the Deli Den restaurant in Southeast Washington. Moore, a decorated D.C. police officer and allegedly Card’s girlfriend, was accused of using police resources to tip off the drug gang to trouble and identify a person Card wanted killed. Rice and Edwards were accused of taking part in the murder of Tolbert. A lot was at stake with both cases. From the start, allegations of misconduct were levied against Howes. Some allegations raised by the defense appeared relatively routine, such as complaints about Howes not handing over evidence that could exculpate defendants. In the Card case, defense lawyers claimed at trial that Howes had made secret deals with witnesses to ensure specific testimony. D.C. criminal defense lawyer Billy Ponds, who represented Card, remembers the trial as a six-month “death battle” between Howes and a set of experienced D.C. lawyers, including Veronice Holt, Cynthia Lobo, and Blaise Supler. Ponds describes Howes as one of the most formidable opponents he has ever faced, but says that he is not surprised that the scales of justice may have been unfairly tilted in the prosecutor’s favor. INFORMANT TESTIMONY A large part of the government’s case against the Card defendants hinged on the word of informants. Kalvin Bears was one of them. Bears, a self-proclaimed crack head, testified that he was one of Card’s street dealers and was at a meeting where Card and his crew discussed a plan to kill Tolbert. Bears also was the witness who saw Moore arrive at the murder scene before Tolbert’s body was moved. Howes sought to build up Bears’ credibility with the jury by telling them how Bears had pleaded guilty to carrying a gun and selling cocaine. “He has already pleaded guilty to a mandatory five years,” Howes said, according to court papers. Card, Edwards, and Rice were convicted on multiple counts, including murder, kidnapping, and weapons offenses. Card and Edwards were each sentenced to more than 35 years in prison. Rice was sentenced to more than 25 years. The jury could not agree on Moore, who eventually pleaded guilty to a murder conspiracy and evidence tampering and was sentenced to at least three years in prison. Nearly a year after the convictions, Bears’ attorney filed a motion in Superior Court requesting that his client be allowed to withdraw his 1992 guilty plea to gun and cocaine distribution charges for which he had not yet been sentenced. The motion states: “The United States, through Assistant United States Attorney Paul Howes, does not oppose this motion and upon its grant will move to dismiss the charges brought by indictment in this matter.” Both Holder and Schertler say it is unusual for the government to allow a witness to withdraw his guilty plea after testifying. Schertler, who normally would have had to approve such a deal, says he has no recollection of the matter. On March 27, 1995, the same day Card was sentenced and a week before Moore pleaded guilty, Superior Court Judge Mildred Edwards granted the motion and ordered Bears released from custody. That same day, Howes signed a federal fact-witness voucher bearing a Newton Street case heading claiming Bears was owed $168 for pretrial attendance. The voucher claims that the pretrial work took place on March 13, 20, 23, and 27 — days that public defender Levick claims Bears was locked up. A year and a half later, Bears was arrested by Prince George’s County police and charged with robbing 11 Maryland businesses at gunpoint. All told, Bears received $504 in vouchers signed by Howes for Newton Street cases. According to Levick’s motion, Bears subsequently told the Public Defender Service that he knew nothing about the Newton Street case and never testified in that case — only in Card’s prosecution. Other Card witnesses were also paid several thousand dollars for their pretrial and trial work in the Newton Street cases — although their names never came up in any of the trials and they never testified, according to the PDS motion. Irvin Pittman, for example, was paid $3,600 worth of Newton Street vouchers. Pittman, a chief government witness against the Card defendants, had pleaded guilty to conspiracy to commit murder in connection to the Tolbert murder and a charge of being an accessory after the murder. After entering the plea, Pittman was released on his own recognizance. After the conviction of the Card defendants, Pittman was sentenced to 15 to 45 months for the murder conspiracy and accessory charges. Judge Shellie Bowers suspended the sentence and ordered Pittman to serve one year of supervised probation. Pittman’s cousin, Leroy Pearsall, was paid $4,300 worth of vouchers attributed to the Newton Street case. Pearsall also pleaded guilty to murder conspiracy and accessory charges. Judge Robert Richter sentenced him to one year unsupervised probation. Pearsall has since told the PDS that “he had no knowledge of or involvement in” the Newton Street cases. Pittman’s girlfriend, Clarice Haywood, received nearly $2,000 in federal money tied to her alleged participation in the Newton Street case. According to a written statement Haywood gave to PDS investigators last year, Haywood, who lives in Philadelphia, was called to appear before the grand jury in Card, although she says she was never asked any questions. Court records show that Howes issued vouchers to Haywood under the caption of two different cases involving Newton Street defendants. In her statement to the PDS, Haywood says she received the vouchers from Howes whenever she would come to the District to see Pittman during Card’s trial. She says during those occasions, she and Pittman would arrive at a D.C. hotel and find the room paid for. Court records indicate that Howes authorized payments for lodging on some occasions when Haywood traveled to the District. The payments were authorized by Howes because Haywood was said to be a fact witness in United States v. Mark Hoyle, the chief Newton Street case. According to the PDS court submission, Haywood says she never worked with Howes on any case other than Card.

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