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.

"That 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 potential threat.

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 next week.

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.

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