Bail Ruling for Scientist Puts Federal Case in Jeopardy
James Sterngold - The New York Times - August 26, 2000
LOS ANGELES - Decisions on bail rarely have much influence over the outcome of criminal
trials, because they focus on the narrow questions of the risk that the
defendant might flee or
endanger the community, not guilt or innocence.
But when Judge
James A. Parker of federal District Court in Albuquerque
decided on Thursday to release the
nuclear scientist Wen Ho Lee on bail,
the order cast this important national security trial in a different light
and created potentially difficult
problems for the government.
The importance of the decision,
which may take a week or more to be
carried out, is that it followed an
extraordinary three-day hearing at
which the government laid out a significant portion of its evidence
against Dr. Lee. That meant the defense lawyers were able to attack not
just the notion that Dr. Lee might
present a threat if released, but also
the credibility of assertions at the
heart of the government's case.
For instance, the government
claimed that Dr. Lee acted deceptively when he improperly downloaded a vast library of nuclear weapons
secrets. That has now been called
into question because of a series of
misstatements by an F.B.I. agent
testifying for the government.
And the government's more important claims that any leak of the
data Dr. Lee is accused of improperly downloading could alter the global
balance of power -- one expert called
any release of Dr. Lee on bail a "you
bet your country" decision -- now
appears exaggerated, particularly
after the defense presented respected experts who insisted that most of
the information was already in the
public domain and would be of little
use to any other country.
In presenting their case for releasing Dr. Lee after more than eight
months in jail, the defense introduced no new evidence about Dr.
Lee's actions, such as alibis or information that he had not actually engaged in the specific actions cited in
his indictment. Instead, the defense
used facts unearthed in discovery to
hammer relentlessly on the credibility of the government's descriptions
of Dr. Lee's supposed deceit.
The judge's decision, which reversed a December order, suggests
that at least some of that was persuasive.
The government's case "no longer
has the requisite clarity and persuasive character," needed to hold Dr.
Lee, Judge Parker wrote.
"Certainly, judges don't look kindly on F.B.I. agents who mislead
them, and they are upset if they are
told something that's not true," said
George Cardona, a law professor at
the University of California at Los
Angeles and until recently the head
of the criminal division at the United
States attorney's office here.
can affect how the judge views the
credibility of the case. That's not a
position anyone wants to be in."
Judge Parker has yet to issue a
new written order, so his reasoning is
not clear. But he suggested that he
still saw Dr. Lee as somewhat of a
He proposed that Dr. Lee be held
under strict home detention, with severe limits on whom he can see,
where he can go and even on what he
can say; the government, in the
judge's proposal, would have the
right to monitor all of his telephone
calls and to cut them off if sensitive
issues were discussed.
But the symbolism of the judge's
decision was plain, and it triggered
some quiet finger-pointing among
government officials apparently concerned about a collapse of the case,
and who might catch the blame.
Some people hinted that John Kelly, the former United States attorney
who oversaw the indictment of Dr.
Lee and is now a candidate for congress from New Mexico, might have
rushed to get the charges filed before
he left office in January.
Mr. Kelly argued the case against
granting Dr. Lee bail in December
and forcefully insisted that the
threat was too great. He released a
written statement today in which he
did not directly address any of the
questions of a rushed indictment. He
said, "I respect Judge Parker's decision on this matter."
Some other officials expressed anger at scientists at Los Alamos, who
had reportedly told prosecutors
there was no question over the significance of the data Dr. Lee downloaded.
"Either more questions should
have been asked before there was an
indictment, or there needs to be
some explanation of why the government was told it could rely on claims
that now appear pretty unreliable,"
one official said.
But the judge's decision may have
also affected the case in another way
that could be subtle but decisive. A
critical defense claim is that it needs
to introduce all of the information
that Dr. Lee downloaded, a total of
806 megabytes, at his trial to back up
its assertion that nearly all of the
nuclear weapons design and test
data is already public.
The government has fought this
effort, insisting that the information
is classified and so sensitive that it
would compromise national security.
Judge Parker has already ruled that
the information is relevant to the
trial, but he has said the prosecutors
can try offering unclassified summaries of at least some of the data, and
some of those substitutions are due
After the bail hearings, the defense
appears to have made at least some
headway in proving the centrality of
this data to the credibility of the
charges against Dr. Lee.
If the defense lawyers can persuade the judge that terse summaries will not go far enough in allowing
them to demonstrate that the information was already public -- a big if,
but not as much of a long shot now --
then the government will be faced
with a stark choice: it would have to
permit what it has said are the
"crown jewels" of the nuclear weapons program in open court, or it
would have to drop the charges.
That is not a new defense tactic.
That is how Oliver L. North succeeded in getting government charges
dropped in his celebrated Iran-contra case several years ago, when one
of his lawyers was John Cline. Mr.
Cline has since moved from Washington to Albuquerque, where he is an
attorney for Dr. Lee.
The Wen Ho Lee Page