El Chapo’s prosecutors are abusing a private communications channel with the judge to keep the kingpin from mounting the best defense possible, his defense lawyers say. They asked a federal judge to moderate such requests and order prosecutors to give them a summary of those conversations.
Attorneys Michelle Gelernt, Michael Schneider, and Edward Zas—public defenders who represent one of the world’s richest men, in part because communications barriers make it difficult for him to hire private counsel—also filed a fiery response to prosecutors’ characterizations of Joaquín Archivaldo Guzmán Loera’s evidence review conditions.
He faces 17 counts relating to drug trafficking in Brooklyn federal court.
The Sinaloa cartel kingpin is housed in brutal isolation in the Metropolitan Correctional Center’s notorious 10-South unit for detainees deemed high-risk. Attorneys and prosecutors have waged battle over the plexiglass and a metal screen that divide the Sinaloa cartel leader from his defense team.
Now defense lawyers say prosecutors have filed four so-called ex parte submissions with the judge since El Chapo landed in New York in January. They violate his “right to due process, a public trial, and effective assistance of counsel, and threatens to undermine the integrity of these proceedings,” they charge. The filings have been used to limit Chapo's contact with his wife and Mexican attorneys, and obtain a broad protective order for evidence and attorneys, among other things, according to court filings.
The private nature of these submissions leaves them with no way to challenge the prosecution's narrative, defense attorneys claim, and interferes with many of El Chapo's constitutional rights. They asked Judge Brian Cogan to make the government prove that such private submissions are truly inevitable, and to make prosecutors furnish the defense team with redacted copies, or—at the very least—summaries of each one. “Courts have recognized that the government ‘bears a heavy burden’ in demonstrating that an ex parte communication is warranted,” they wrote.
A spokesman for the U.S. attorney’s office said prosecutors will respond by next Tuesday. They have repeatedly voiced concerns about El Chapo’s “lengthy history of violence,” as well as witness intimidation, and have sought to shield the names of potential witnesses from the cartel leader.
In a letter filed Friday night, the defense team also slammed the government's claims that they misrepresented the struggles of reviewing evidence with El Chapo as "wrong (and personally offensive)," and repeated claims that the current system violates Guzman’s constitutional rights, which they linked to their other challenge, to his extradition to New York.
“Though we are not privy to the government's decision-making process, it appears that the choice to bring Mr. Guzman to Brooklyn, rather than to the districts to which the Mexican government actually granted extradition, was influenced by the opportunity to hold Mr. Guzman at 10 South (where a sign boasts upon entry that it is the 'strongest' specialized housing unit.),” they wrote. "This choice has resulted in conditions of confinement that violate Mr. Guzman's Sixth Amendment rights to counsel and to prepare and present a defense."
The 10-South confinement also violates Chapo's rights to due process and free exercise of religion, they charge.
Defense attorneys have previously asked to be locked in a single cell or holding area with El Chapo, while prosecutors proposed minor changes that would maintain a separation between him and the defense team. But the new filings also provide key insights into conditions at 10-South, which are not accessible by the general public.
In one of the unit's trial preparation spaces, "Mr. Guzman is locked in one of several cages along one wall of the room." There, he can interact with lawyers only through an 8.5 inch plexiglass window.
"The plexiglass is scratched and dirty. On either side of the plexiglass is a metal screen, each about four-and-a-half inches wide,” they wrote. “The plexiglass window and metal screens are placed too high above the door for a seated person to see through."
Lawyers say they have to stack plastic chairs, one on top of the other, so that they can talk to Chapo while seated. Now, though, they say they were "recently informed by the [Bureau of Prisons] staff that visiting [prosecutors] directed them to remove the plastic chairs."
Defense attorneys maintain that they must share a physical space with El Chapo to prepare the defense case and share documents with their client. They challenge prosecutors' claims that El Chapo can easily locate a page of the voluminous evidence on his computer during discussions, or that they can anticipate ahead of time what documents they may need to review with him.
Cogan ruled earlier this month that a magistrate judge will go observe the conditions under which they interact with the druglord to decide whether certain restrictions must be lifted.