Roger Khan powerful enough to corrupt jury --Prosecution
Prosecution, defence cross swords on anonymous jury
Kaieteur News news item. Wednesday 30 April 2008
“By his own words he was involved in organising various paramilitary groups. Whether it was government-sanctioned or not, quite frankly, the fact that he had access to troops that were allegedly trying to control the government there or control opposing parties, for whatever the reason, still means that he had access to people with weapons, people who were doing violence, people who were committing violent acts.” – Judge Dora Irizarry
Judge Dora Irizarry has told prosecutors that they have to file their motion to seek to admit evidence to support their contention that Shaheed ‘Roger’ Khan killed Davenand ‘Dave’ Persaud by today.
The order came on Monday when both the defence and the prosecution clashed over the treatment of evidence and the release of unsubstantiated claims. They had appeared in court last week when the defence charged that it had procured evidence from one of its informants that Shaheed Khan had ordered Persaud’s death on the night of October 25, 2004.
When they returned to court on Monday, one of the first observations the Judge made was that there was an absence of any relative for the defendant. Defence Counsel immediately assured the court that they would be there and that they were caught up in traffic.
The forum was for a status conference to address a number of things, including Khan’s application that depositions be taken in Guyana and the trial date, which is tentatively set for October 27, next.
“The court will need to address that motion (the deposition motion) in terms of the number of witnesses and so on, and the relevance in order for the court to determine whether or not the relevant factors have been met.”
“There was an indication at the last conference as to some of the witnesses, a total of six at least, who the government represented could be subject to criminal liability if they entered the United States and subsequent to that status conference, the defence has represented to the court in its sealed submission that those six individuals are now unwilling to come to the United States.
“That's obviously a factor that the court will have to address in terms of making a determination,” Judge Irizarry said
The court also examined the application by the government side for an “Anonymous jury”, which Judge Irizarry said was something on which she would rule.
The prosecution was vehement that there was a need for such a jury, or at least a partially sequestered jury.
Defence Attorney Diarmud White said that the move by the prosecution for an anonymous jury is based on speculation.
“It's just that the government's motion relied so much on newspaper clippings and usually in anonymous jury motions that I've seen, the showings are much more concrete than just the word of the government's submission. It's based on tape recordings, prior tampering with a jury in such and such a case.
“These were, I will use the word "speculative," as I can say, based on a lot of newspaper clippings, on the agent's investigation, in quotes, and we were just challenging that. That is not a sufficient factual showing without more detail to base an anonymous jury on.”
But the prosecution countered, “We think there is a sufficient basis for an anonymous jury based purely on things that are not in dispute, things that Mr. Khan admits himself, that he wielded a lot of power in Guyana.
“He has many people who are still loyal to him. He has many followers here in the United States. I think he would admit to that himself.
“Judge, to not put too fine a point on it, all that needs to happen is for Mr. Khan to be able to get to one juror and our whole jury trial goes down the drain. We're extremely concerned that that could happen in this case,” prosecutor Paige Petersen stated.
The defence insisted that the prosecution arguments were based overwhelmingly on speculation.
“We're actually asking for a more detailed proffer, and if we dispute them, then we would want a hearing.”
Judge Irizarry then noted, “By his own words he was involved in organizing various paramilitary groups. Whether it was government sanctioned or not, quite frankly, the fact that he had access to troops that were allegedly trying to control the government there or control opposing parties, for whatever the reason, still means that he had access to people with weapons, people who were doing violence, people who were committing violent acts.
“Certainly in this country we wouldn't condone anybody doing that, whether it was under colour of law or not, whether it was sanctioned by the government or not.”
Defence attorney countered, “I don't believe it follows from the charges in the indictment that Mr. Khan has control of anybody in the United States.
“What the government had said in their papers is that he was at the head of the cocaine business in Guyana; that he had a source from which he got cocaine and imported it into the United States. That is the theory of liability.”
Judge Irizarry continued that people like Pablo Escobar of Colombia pulled the strings in the United States so that the prosecution arguments were not that far-fetched.
“Pablo Escobar wasn't the one over here in the United States doing the deals himself and transacting business and delivering the cocaine; there's no question that he was pulling the strings from Colombia; there is no question that he was kept apprised of what was going on in the United States in terms of the distribution, and there is no question that he gave orders, and there is no question that he controlled a segment of the Colombian government back at that time -- we're talking well over a decade ago, almost two decades ago -- so I don't think it's that farfetched an argument.”
She however reiterated that she was reserving her ruling on the matter of the anonymous jury.
A letter by the prosecution filed on April 24, last was also discussed. At the root of the discussion was the move by the prosecution to restrict the defence access to documents from previous trials involving Guyanese on trial in the United States on drug charges.
Judge Block had ordered limited distribution of certain documents, including one that dealt with the shooting death of Davenand Persaud in Guyana.
Ms Petersen was the lawyer at one of those earlier trials. “We had a particular issue with defence counsel about what would be the close with regard to Mr. Persaud. Mr. Persaud was dead at that time, he had been dead for about a year, but his statement came in at trial, his co-conspirator statement.”
She said that the judge in that matter placed some material in an envelope with a view to making it available to the defendants if they wanted to file for an appeal.
“There were four defendants who went to trial and many of them got other counsel for sentencing and appeals… I'd like to know if any of it was disseminated because there was a court order and it should not have been disseminated.”
The defence noted with suspicion that the letter was filed at the same time as the motion for an anonymous jury and that while the motion was sealed (not to be made public) the letter implicating Khan in Persaud’s murder was not.
“Everything about the Persaud murder was under seal. Then Friday, in a theoretical response on discovery, she (Ms Petersen) includes in there in two points, in a footnote and in the body of the document, the allegation about Persaud. She could not have forgotten what occurred in this court the last time and the court's efforts at caution. Frankly, I think there should be a sanction against the government.”
Judge Irizarry denied the request.
The court also heard that Dave Persaud had been cooperating with the United States authorities to the extent that he allowed them to tap his phone.
Defence attorney Robert Simels noted, “The government has provided us with a series of conversations purportedly made by David Persaud, with which -- I don't want to misquote Ms. Petersen, she'll correct me if I'm wrong -- she's either told us that it was a consensual Title III or something of that nature.
“If there was, we would like the application for the same, if the government intends to offer those tapes at trial. We would like to know if there are other tapes besides the ones they have proffered to us and we're really not getting a lot of direction. If they are not going to offer them at trial then I don't need the exercise and I don't need to listen to other tapes, but if they intend to offer those and they are either a Title III or they're consensual, we would like to know if that is the universe of the tapes and if there are applications to the court about them.”
Ms Petersen insisted that the recording was consensual and that the prosecution intends to use those tapes at the trial.
“Mr. Khan doesn't have any status to challenge the propriety of whether we could be recording Persaud's phone or not. He doesn't have standing to do that.”
The prosecution also emphatically stated that it intends to use the dead man’s recordings at Khan’s trial.
The court will meet again on June 9, to continue preliminary discussions leading to the trial on October 27. The defence expects the trial to last three months while the prosecution expects it to last three weeks.
And in closed door proceedings in the absence of the government, Judge Irizarry and Defence Counsel Robert Simels and Diarmund White, examined detailed oral presentation as to the need for each witness, and then dealt with the subpoenas that the defence wants to issue.
The judge also directed that the government provide the defence with all transcripts by June 16.
The government is also directed to provide access to the defence handwriting expert with respect to a ledger belonging to Alicia Jagnarain by May 30. Alicia Jagnarain is believed to be one of the prosecution witnesses in the trial.
Jagnarain is a Guyanese who was arrested for drug dealings in the United States and who has faced a judge on the matter.