by Jason Ryan
They rarely had the merits of any case on their side so they tried to bury the government in a zillion motions. Most of the motions they filed were so esoteric that the judges almost invariably ruled in the government’s favor—often before even hearing the government’s motion. For some strange reason, however, they were particularly popular among the dopers in Northern Virginia. There’s no doubt that they vigorously defended their clients but they rarely won their cases. If I were a drug defendant back then, facing potentially significant time, they would be the last attorneys I would choose.
It didn’t help, Mittica says, that Zwerling sometimes wore bib overalls to court with marijuana pins stuck in the straps. Although there’s no indication such attire was worn before Hawkins, Zwerling and the other defense lawyers had little problem gaining the attention of the mild-mannered judge, quickly putting him and the government on notice that, in contrast to the rather passive approach taken by the defense counsel in the first Jackpot trial, the out-of-town lawyers would fight the charges aggressively. At times their performance was off-putting to the prosecutors, and Cam Currie, the assistant U.S attorney credited for organizing much of the Jackpot investigation and trials, said she remembers being offended by some of the defense lawyers’ “hardball” tactics, including accusations that the government encouraged its witnesses to lie on the stand.
Currie had missed most of the first Jackpot trial to attend extradition hearings in Australia for Riley and Wally Butler. Returning home, she worked with fellow prosecutors Cam Littlejohn, Bart Daniel, and Bob Jendron to prepare for the second trial. This time around the government would benefit from witnesses like Campbell and Steele, who could testify for hours on end, sharing their unique perspectives of South Carolina’s empire of marijuana smuggling. Such testimony allowed the government to avoid calling the less reliable witnesses that had plagued their case in the first Jackpot trial.
Cognizant of the damning testimony men like Campbell, Steele, Pernell, Toombs, and others might give, the four defendants chose to argue they were victims of double jeopardy. Gunn, MacDougall, and Sanders had all been indicted as members of Foy’s ring, but were not convicted in the first Jackpot trial. These new charges, their lawyers argued, were indistinguishable from the old, and the government had erred when it alleged separate conspiracies organized by Foy and Riley. Any drug offenses that took place, they said, were part of a single conspiracy in which men regularly participated.
In pleading this point to Hawkins, Moffitt used an argument devised by Zwerling, stating that the Foy and Riley rings were like two teams that conspired to play an illegal game of baseball each Sunday. Sometimes, he said, Team A would be short a few players and would borrow people from Team B. Other times, Moffitt said, Team B would borrow players from Team A, but the teams always conspired to play a single game of baseball each week.
Or, as Zwerling put it, the smugglers in the two indictments were like teeth in a zipper. Without one side, the other would be useless.
“The crossing over is constant,” Zwerling said. “All the way up the line starting from 1975.”
The government was quick to counter these analogies, arguing it was illogical to classify all smuggling offenses under the umbrella of a single conspiracy.
“We are not talking about two baseball teams, and only two baseball teams. We are talking about two separate drug organizations that are maybe two of fifty or a hundred that run up and down the East Coast. And they don’t do business every Sunday or every day. They do business when they want to do business, and sometimes they use common means,” said Jendron. “It’s becoming apparent in the United States, and particularly in organized drug smuggling, that there is some floatation between the different distinct organizations … and what it’s called is ‘contracting.’ ”
In the case of Michael Harvey’s double jeopardy defense, lawyer Larry Turner told the court how Harvey had been imprisoned after pleading guilty to drug charges in Virginia, only to be indicted in South Carolina eight days after being paroled. Turner complained his client was being punished twice for the same offense.
“Someone said to me just today that it’s a little bit like young Johnny, when he hits the baseball through Miss Matilda’s window and it breaks the window and it carries on through and it breaks her spinster sister’s lamp,” said Turner. “How many spankings does little Johnny get for that? Does he get two, or does he get one?”
Hawkins was ultimately unmoved, agreeing with the government in pretrial hearings that there existed separate and complete drug smuggling conspiracies. The defense lawyers were dismayed, but not surprised by the decision. Before the trial began, they appealed the case to the U.S. Court of Appeals for the Fourth Circuit, which issued a stay and soon ruled that it would indeed review an appeal on the grounds of double jeopardy, but could only do so if the appeal was made after a conviction, not before one. In other words, the defense lawyers may have to concede a conviction at trial in Columbia before having it potentially overturned by the appeals court in Richmond, Virginia. It was their best shot, they decided, though it wasn’t worth conceding the men’s guilt entirely to the jury, especially in instances where their client’s alleged involvement did not overlap with activities alleged in the first Jackpot trial.
During the first two weeks of the trial, the government called dozens of witnesses to testify about scores of smuggling ventures. The defendants were placed on smuggling sailboats and at off-load sites, exchanging gemstones and driving trucks. They were at parties, on plantations, and aboard Learjets and the Concorde. Money and drugs, the witnesses said, motivated all those activities. The testimony was frequently interrupted by sharp exchanges between the prosecutors and defense lawyers. If the government was occasionally taken aback by the constant challenges from their counterparts, the defense was caught off guard, too. Among some of the defense lawyers there was a feeling, which was perhaps enhanced by South Carolina’s reputation for good ol’ boy politics, that all was not above board.
Zwerling remembers being in the courtroom lobby one day when he was introduced to Hawkins’s son, who said he was clerking for South Carolina Supreme Court Justice Bruce Littlejohn. Zwerling was shocked, and minutes later he approached Sanders’s lawyer, the South Carolinian Ed Bell, to confirm that the son of the trial judge was clerking for the father of the assistant U.S. attorney, Cam Littlejohn. Bell said yes, and, to Zwerling’s disbelief, shrugged off the potential conflict of interest.
“Down there it was no big deal,” says Zwerling. “Up here [in Virginia], it would have been a big deal.”
For Moffitt, there was uneasiness about being a black lawyer trying a case in a federal building and U.S. courthouse named for former segregationist and current U.S. Senator Strom Thurmond. At one point in a heated debate, he says, he asked Littlejohn how he’d like to try a case in the Malcolm X Courthouse. That moment, Moffitt says, likely occurred about the same time the defense lawyers noticed an increased amount of security in the courtroom and prosecutors coming out of the judge’s office. Curious as to what was happening, Zwerling and Moffitt made inquiries to Hawkins, only to be told it was something unrelated to the case. Zwerling could not understand how that was possible, and Moffitt became convinced the good ol’ boy system was hard at work.
Eventually the defense lawyers learned Hawkins had been conferring with FBI agents and prosecutors because a Death Row inmate named Doyle Cecil Lucas had written letters to a juror. This was not the first time the convicted murderer’s name had come up during the trial. Weeks earlier Bell disclosed that he and Sanders visited Lucas after the inmate contacted them from prison and said he wanted to talk about the Jackpot case. During the meeting Bell said Lucas asked if they wanted him to “fix the jury” and cause a mistrial—an offer Bell said he declined, cutting short their conversation. The episode was bewildering, Bell said, and he was astonished by the Death Row inmate’s knowledge of the case and its participants.
Hawkins sympathized with Bell, perhaps b
ecause of his own peculiar relationship with convicted South Carolina serial killer Pee Wee Gaskins. Before becoming a judge, Hawkins told Bell and the other defense lawyers and prosecutors, he had once represented Gaskins and got him acquitted.
“He sent me lots of customers,” said Hawkins. “I get a lot of letters about [how] Judge Hawkins can help you out.”
Now, weeks after Bell and Sanders’s meeting with Lucas, the government had become aware that the inmate had written to a juror and was concerned that the killer had contacted other jurors as well. After the defense lawyers’ protests, Hawkins gathered lawyers from both sides in his chambers, along with a court reporter, to discuss the unusual communication and the potential effects on the jury. Hawkins was adamant that discussion of the letter be kept under wraps, and he excluded the media as he shared more details of the correspondence from Lucas.
“I’m not going to have any press. What I’m calling open court is right here. This is open,” said Hawkins. “We’ll even go further than that. And I’ve really got that gag order in effect—if you all don’t think I’ll put you in jail—really he wrote two letters.”
For the defense lawyers, such interference was troubling. The possibility existed, they told Hawkins, that anyone who received letters from Lucas about acquitting the men on trial might go out of their way to convict the defendants just to “prove their virtue,” as Zwerling put it, and not do the killer’s bidding. Hawkins proceeded to ask the juror about the letters she received, and, after initially denying anyone had contacted her, she admitted to receiving a single letter from Lucas, but said that she tore it up and spoke of it to no one. Hawkins excused her, and everyone present agreed the juror, who was thought to be related to Lucas through a common-law marriage, was not being completely candid. She would have to be replaced, they decided, and so might other jurors if they had been contacted. Hawkins started questioning the other jury members and uncovered even more problems.
A male juror from Orangeburg, South Carolina, told Hawkins that a pawnshop owner had recently asked him to visit his store, ostensibly to show him a guitar amplifier he had looked at days earlier. But when he arrived, the juror said, he learned the owner had a different agenda.
“He asked me, was I on jury duty. And I told him, ‘Yes, sir,’ ” said the juror. “And he said he heard that fellow that was in trouble with this smuggling operation was going to try and get out of it by paying some sum of money, and he mentioned the name Les Riley.”
The juror informed Hawkins he had mentioned this incident to another juror, which upset the judge and required him to question her next. Hawkins was not pleased at the turmoil that had been brewing within his jury. Moreover, the confusion was addled by a logistical problem: Court officials were running out of rooms trying to keep separate a growing assortment of groups, including the judge and lawyers, the media, questioned witnesses, and unquestioned witnesses. Hawkins worried about having to replace the entire panel of jurors.
“Things aren’t working too well along through here, and I would say, if they get worse, like this case seems to have a habit of working itself, then, you know, I’m almost hesitant to even ask the next lady the question,” said Hawkins. “Mr. Clerk, I need another room … I’m sure the press, by now, knows that something terrible is going on.”
In the end Hawkins replaced the juror who had been contacted by Lucas with an alternate—an action the press reported, though the media did not know why the switch was made. After an interruption of several hours, the trial resumed. The prosecution continued to call their witnesses, while the defense lawyers tried to depict them as the most contemptible of men for cooperating with the government and testifying against friends in exchange for a reduction in charges.
“What they are bargaining with here is the lives of other people,” said Moffitt. “And that is the worst kind of bargaining that you can make.”
When former Hilton Head fireman Hank Strickland took the stand, Moffitt elicited an admission from him that he violated public trust by sharing law enforcement radio frequencies with smugglers. Moffitt also quizzed him about the light punishment he received after providing Jackpot agents with critical information early in the investigation.
“So you got a complete walk,” said Moffitt. “You walked away from these events without ever having to go to court, without ever having to sit and hear your name come up in anything like this, didn’t you?”
To the defense counsel’s pleasure, not every witness the government called was cooperative. One alleged the police planted evidence. Another, Kenny O’Day, wore jeans and a bandana when testifying, an apparent protest against the suits other government witnesses wore. Although he grudgingly identified Gunn as a crewmate aboard the Second Life, a reporter described him as a “most reluctant government witness” and Hawkins even remarked about his hostility. While on the stand, O’Day explained why he had refused to testify in front of a Virginia grand jury, and how he regretted testifying now in South Carolina, though he felt compelled to do so in order to avoid serving any time beyond his current sentence for drug crimes in Virginia.
“It’s been instilled in me since childhood, it’s not the right thing to do to tell on somebody else,” said O’Day. “Morally, I don’t think it’s right.”
After the prosecution rested, the defense called very few of its own witnesses. The exception was Sanders’s lawyer, who sought to establish an alibi for his client during the early morning hours when the Anonymous of Rorc was busted on Sanders’s grandmother’s property, with suspects fleeing into the woods. Among these witnesses was Granny herself, Ella M. Seabrook, a ninety-year-old woman who Bell said was famous for her waffles and breakfast.
“Oh yes,” Seabrook replied to that compliment. “I’m an old girl at cooking.”
Seabrook had little to say about the night police swarmed her property, except to say that her grandson didn’t keep radios in the house and she didn’t appreciate the police mulling around her yard and coming inside.
When it came time to cross-examine the sweet old woman, Currie gingerly stepped forward. The prosecutors were aware they had to tread carefully when questioning the senior citizen, that they could not abuse her, even if they suspected she was not being forthcoming. Currie, being the lone female prosecutor, was regarded as the best choice for the delicate task. Her colleagues nicknamed her “Mikey” for cross-examining difficult witnesses, referencing the popular Life cereal commercial in which a youngster named Mikey is given a bowl of cereal after his older brothers balk at eating a food “that’s supposed to be good for you.”
“Let’s get Mikey,” the brothers say in the famous commercial clip. “He won’t eat it.”
But Mikey does eat it, and he likes it.
In the trial, though, there was no place for such lighthearted humor, even with Granny taking the stand. The prosecution and defense lawyers became increasingly antagonistic as the witness lists were exhausted and the trial neared its conclusion. The opposing lawyers’ passions contributed to sharpened tongues during closing arguments, with the defense launching a final attack on the credibility of the smugglers who testified for the government. Zwerling and Moffitt, in particular, expressed disgust with the methods used to compel witness testimony.
“No matter how reprehensible they feel it is, no matter how morally degrading they feel that what they’re being made to do is,” said Zwerling, “the government has found a way to scare them, threaten them, squeeze them or pay them off to do something—come here and tell what the government wanted.”
Moffitt told the jury that the men who took the stand were no different than Soviets who informed on their own neighbors.
“Please understand that because you are our last resort; you are what separates us from the Iranians and the animals,” said Moffitt. “Do not let testimony be bought and sold. Do not let lives be bought and sold. Protect us all from that because we need to be protected.”
Rebutting Zwerling’s charges, Littlejohn sniped back, be
littling the defense’s arguments as bluster intended to distract from the plain facts.
“When you have a case and you’re defending it, and the case is not good, you attack the witnesses, when the case is even weaker, you attack the prosecution,” said Littlejohn. “A cheap lawyer trick.”
Responding to Moffitt’s geopolitical comments, Littlejohn argued that the real menace to America was not the smugglers who confessed to their crimes, but rather the unrepentant criminals who denied wrongdoing.
“I don’t know where Mr. Moffitt grew up, but where I grew up everybody was supposed to respect law and order, cooperate with law and order; if they knew a crime, they were to tell about it,” said Littlejohn. “Mr. Moffitt goes on to talk about the moral outrage of bringing these people in to testify under oath. Ladies and gentlemen, the moral outrage in this case is the flood of drugs that is coming into this country every year ….
“He goes on to say, ‘Protect us from the government … ,’ I say, ‘Protect us from drug smugglers like Bruce MacDougall.’ ”
When Littlejohn finished, defense lawyer Bell, who referred to government witnesses as worms in his own closing argument, complained to Hawkins about some of Littlejohn’s comments. The griping triggered the usually elusive temper of Hawkins, who soon verbalized the frustrations he had so far endured in the two Jackpot trials. He was not spare in his criticism.
“I have never in the years I have been practicing ever heard attorneys address fellow attorneys or to accuse them of things I have heard in this argument,” said Hawkins. “And the only thing that even comes close to it was the last trial we had, and, as you recall, I called some lawyers down for it.