In Witness Killing, Prosecutors Point to a Lawyer

United States Attorney’s Office

Deshawn McCray was fatally shot on a Newark street before he could testify for the prosecution in a cocaine-selling trial.

Published: December 21, 2007

NEWARK — For prosecutors in New Jersey, much about the 2004 murder of Deshawn McCray was all too familiar: Yet another key witness in a major drug case had been shot dead before he could testify in court.

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Scared Silent

Disturbing Twist

This is the seventh article in a series examining the problem of witness intimidation in New Jersey.

Previous Articles

Keeping Witnesses Off Stand to Keep Them Safe (Nov. 19, 2007)

Few Choices in Shielding of Witnesses (Oct 28, 2007

In Prosecution of Gang, a Chilling Adversary: The Code of the Streets (Sep 19, 2007

Fearful Witness Faces Trial for a Murder Seen, Then Unseen (July 29, 2007)

A Little Girl Shot, and a Crowd That Didn’t See (July 9, 2007)

With Witnesses at Risk, Murder Suspects Go Free (March 1, 2007)

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Ronald Wittek/European Pressphoto Agency

Prosecutors claim that Paul Bergrin, a defense lawyer, facilitated the murder of Mr. McCray.

Mr. McCray was expected to testify against Mr. Bergrin's client William Baskerville, who was accused of selling cocaine.

Hakeem Curry, top, and William Baskerville.

But there was one aspect of the killing that especially alarmed and infuriated prosecutors. They believed that a defense lawyer — a former prosecutor — had played a role in facilitating the murder.

The United States attorney has said that that lawyer, Paul Bergrin, relayed Mr. McCray’s identity to friends of one of his clients, a gang member who was facing life in prison on drug charges. The prosecutors said he had even met with members of his client’s gang in person to make clear what was at stake.

“No Kemo, no case,” Mr. Bergrin told the gang members, using Mr. McCray’s nickname, according to testimony in federal court this year.

Three months later, Mr. McCray was shot in the head by one of the gang members on a Newark street.

“Paul Bergrin was a pivotal part of the conspiracy to kill Kemo McCray,” an assistant United States attorney, Joseph Minish, said in court. “Without him, it would not have taken place.”

Prosecutors will not speak publicly now about Mr. Bergrin. They have never charged him in connection with the killing or in any other case in which witnesses might have been intimidated or harmed. They have indicated that problems with safeguarding key evidence — including a wiretapped conversation involving Mr. Bergrin — have left them unable to pursue a prosecution.

But for law enforcement officials in New Jersey who have struggled to combat the widespread problem of witness intimidation, the claims about Mr. Bergrin amount to a particularly disturbing twist on a growing threat.

Mr. Bergrin, in an interview, denied any involvement in knowingly endangering a witness. He said that he had never met with gang members, and that anyone who claimed that he conspired to harm a witness was lying.

“I had nothing to do with the homicide of any witnesses whatsoever,” said Mr. Bergrin, who continues to practice criminal defense law in New Jersey. “I would never partake in any kind of action related to that kind of conduct.”

Law enforcement officials in New Jersey, though, have long been concerned about cases involving Mr. Bergrin’s clients, many of them gang members.

In one case, murder charges against Mr. Bergrin’s client were dropped after a prosecution witnesses was killed. In another murder case and a shooting case, charges were reduced after witnesses were intimidated and recanted their previous statements. And in 2005, a witness against one of Mr. Bergrin’s clients in a murder case changed his story after the defendant’s relatives gave him $1,050 in Mr. Bergrin’s office — and later pleaded guilty to making the payment.

Mr. Bergrin was not present in the office at the time, and he said he had no knowledge of any such payment. “There was never any allegation that I was involved,” he said.

The only legal or professional scrutiny Mr. Bergrin is currently known to face, in fact, is in New York City, where prosecutors have charged him with running New York Confidential, a brothel that charged $1,000 an hour.

The office of the Manhattan district attorney, Robert M. Morgenthau, has accused Mr. Bergrin of taking over the business from a former client and using it to offer sexual favors to unnamed New Jersey law enforcement officers and jail guards — people who were in a position to keep him informed about what inmates might be planning to cooperate against his clients.

Mr. Bergrin has pleaded not guilty. His lawyer, Gerald Shargel, called the charges “nonsense.”

The possible role of defense lawyers in the intimidation of witnesses has angered prosecutors in New Jersey for years, and has recently attracted the interest of state legislators.

For their part, prosecutors say they have grown weary of a familiar sequence of events: Shortly after they provide defense lawyers with copies of a witness’s statement, as they are required by law to do, the threats, warnings and outright attacks begin.

In gang cases prosecuted in cities including Trenton, Newark and Camden, it is not unusual for a witness’s statement to be photocopied within days of being turned over to the defendant’s lawyer, and then be posted on telephone poles or circulated throughout the neighborhood.

State officials are hoping to offer witnesses greater protection, state officials are pushing for laws to restrict the information released to lawyers for certain criminal defendants.

A bill now being considered by the State Legislature and supported by the state attorney general would require that prosecutors handling gang cases turn over only a witness’s name, and make it a felony for defense lawyers to provide their clients with addresses or other identifying information.

“The defendants have a right to know the evidence against them,” said Assemblywoman Bonnie Watson Coleman, a sponsor of the bill. “But witnesses have a right not to be harassed.”

But even supporters of that measure concede that it will be of limited value because many gang crimes occur in neighborhoods or drug organizations so tightknit that all it takes to locate a witness is a name — or a nickname.

Mr. Bergrin, 52, built a reputation as something of a legal maverick as he moved from prosecutor to defense lawyer.

After a decorated career in the Army infantry, he was a prosecutor for the United States attorney’s office in New Jersey and the Essex County prosecutor’s office, preparing his cases with a ferocity that impressed his colleagues and intimidated his opponents. Mr. Bergrin — the son of a Brooklyn police officer and a graduate of law school at Nova Southeastern University in Fort Lauderdale, Fla. — bragged that as a prosecutor he won convictions on every homicide case he handled.

He entered private practice sometime before 1990, and since then, Mr. Bergrin’s client list has allowed him to move through divergent worlds. He has represented celebrities like Queen Latifah; soldiers accused of murdering Iraqi detainees; Angelo Prisco, a Genovese crime family boss; and a former Mrs. New Jersey, who was accused of passing $70,000 in bad checks.

And he has won acquittals in more than a dozen murder trials, a track record that has made his name familiar along Newark’s streets and cellblocks.

Mr. Bergrin’s dealings with those clients has provoked criticism from prosecutors and police officials who say he has become far too close to the accused drug dealers and gangsters he represents.

Mr. Bergrin defends his work.

“When you represent thousands of individuals, have had hundreds of homicides and violent crimes, you can’t be held responsible for every time a witness gets talked to or intimidated or threatened,” he said.

In Mr. McCray’s case, the events leading to his slaying began in November 2003, prosecutors have said, when Mr. Bergrin met with a client named William Baskerville, who had just been arrested on charges of selling more than 50 grams of cocaine.

The prosecutors’ charges about Mr. Bergrin emerged at Mr. Baskerville’s trial. Mr. Bergrin had been removed as his lawyer, but he was a central character in the story prosecutors told in court.

Court records and telephone logs show that shortly after visiting Mr. Baskerville in jail, Mr. Bergrin called Hakeem Curry — Mr. Baskerville’s cousin and Newark’s most powerful heroin distributor — and told him the identity of the prosecution’s star witness.

“I got a chance to speak to William, and he said the informant is a guy by the name of K-Mo,” Mr. Bergrin told Mr. Curry, according to a transcript of the conversation, which was taped.

Later that week, according to prosecutors, Mr. Bergrin met with Mr. Curry and two other relatives of Mr. Baskerville’s to discuss the case. One of the gang members who prosecutors said was present at the meeting was Anthony Young.

Mr. Young testified that Mr. Bergrin had warned everyone at the meeting that if Mr. McCray were to take the stand, Mr. Baskerville would almost certainly be convicted of charges that would bring a mandatory life sentence. Based on Mr. Bergrin’s statement, Mr. Young testified, Mr. Curry’s organization paid him $15,000 to kill Mr. McCray because “he has to be pushed, he has to be handled, we have to knock him off.”

In the weeks that followed, Mr. Baskerville bragged to fellow inmates that he had sent word to have his witness killed, they testified. On March 3, 2004, as Mr. McCray and his stepfather were walking back from a Newark convenience store, Mr. Young ambushed them.

Three bullets struck Mr. McCray in the head. Mr. Young, who confessed and cooperated in Mr. Baskerville’s prosecution, was sentenced to life and avoided a possible death sentence. At Mr. Baskerville’s trial, the prosecutor, in his summation, said of Mr. Bergrin, “Don’t think, ‘How could a lawyer do this?’ I hope you’re not thinking that. He was in on it, ladies and gentlemen. There is no doubt about it.”

Mr. Bergrin said that he was bewildered by the United States attorney’s assertion that he had sought to have Mr. McCray killed. He said he had spoken to Mr. Curry about the case only at the request of his client’s mother, who had informed him that Mr. Curry was her son’s cousin.

“I was just relaying the strengths and the weaknesses of the case with my client’s relative because of his close relationship,” Mr. Bergrin said.

But federal officials have described Mr. Bergrin in open court as the “house counsel” of Mr. Curry’s drug organization, which they said was responsible for more than 80 percent of the heroin distributed in Newark. Dealers who worked for Mr. Curry have testified that Mr. Bergrin was equal part lawyer and friend whose main duty was to monitor all the cases to be certain that no one cooperated with prosecutors.

The United States attorney for New Jersey, Christopher Christie Jr., has not brought charges against Mr. Bergrin, partly because an assistant prosecutor did not properly safeguard the tapes of wiretapped conversation involving him, meaning that they may not be admissible as evidence in court.

“Any suggestion that I tried to prevent people from cooperating or had other motives is absolutely false,” Mr. Bergrin said. “I work incredibly hard on all of my cases and am available at all hours of the night to represent my clients.”

Should witness lists be withheld in gang related cases?

Wider Spying Fuels Aid Plan for Telecom Industry

By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE

Published: December 16, 2007

This article is by Eric Lichtblau, James Risen and Scott Shane.

WASHINGTON — For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime.

The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

The federal government’s reliance on private industry has been driven by changes in technology. Two decades ago, telephone calls and other communications traveled mostly through the air, relayed along microwave towers or bounced off satellites. The N.S.A. could vacuum up phone, fax and data traffic merely by erecting its own satellite dishes. But the fiber optics revolution has sent more and more international communications by land and undersea cable, forcing the agency to seek company cooperation to get access.

After the disclosure two years ago that the N.S.A. was eavesdropping on the international communications of terrorism suspects inside the United States without warrants, more than 40 lawsuits were filed against the government and phone carriers. As a result, skittish companies and their lawyers have been demanding stricter safeguards before they provide access to the government and, in some cases, are refusing outright to cooperate, officials said.

“It’s a very frayed and strained relationship right now, and that’s not a good thing for the country in terms of keeping all of us safe,” said an industry official who believes that immunity is critical for the phone carriers. “This episode has caused companies to change their conduct in a variety of ways.”

With a vote in the Senate on the issue expected as early as Monday, the Bush administration has intensified its efforts to win retroactive immunity for companies cooperating with counterterrorism operations.

“The intelligence community cannot go it alone,” Mike McConnell, the director of national intelligence, wrote in a New York Times Op-Ed article Monday urging Congress to pass the immunity provision. “Those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits.”

Attorney General Michael B. Mukasey echoed that theme in an op-ed article of his own in The Los Angeles Times on Wednesday, saying private companies would be reluctant to provide their “full-hearted help” if they were not given legal protections.

The government’s dependence on the phone industry, driven by the changes in technology and the Bush administration’s desire to expand surveillance capabilities inside the United States, has grown significantly since the Sept. 11 attacks. The N.S.A., though, wanted to extend its reach even earlier. In December 2000, agency officials wrote a transition report to the incoming Bush administration, saying the agency must become a “powerful, permanent presence” on the commercial communications network, a goal that they acknowledged would raise legal and privacy issues.

While the N.S.A. operates under restrictions on domestic spying, the companies have broader concerns — customers’ demands for privacy and shareholders’ worries about bad publicity.

In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions. The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.

Officials say the government has not listened to the communications, but has instead used phone numbers and e-mail addresses to analyze links between people in the United States and overseas. Senior Justice Department officials in the Bush and Clinton administrations signed off on the operation, which uses broad administrative subpoenas but does not require court approval to demand the records.

At least one major phone carrier — whose identity could not be confirmed — refused to cooperate, citing concerns in 2004 that the subpoenas were overly broad, government and industry officials said. The executives also worried that if the program were exposed, the company would face a public-relations backlash.

The D.E.A. declined to comment on the call-tracing program, except to say that it “exercises its legal authority” to issue administrative subpoenas. The N.S.A. also declined to comment on it.

In a separate program, N.S.A. officials met with the Qwest executives in February 2001 and asked for more access to their phone system for surveillance operations, according to people familiar with the episode. The company declined, expressing concerns that the request was illegal without a court order.

While Qwest’s refusal was disclosed two months ago in court papers, the details of the N.S.A.’s request were not. The agency, those knowledgeable about the incident said, wanted to install monitoring equipment on Qwest’s “Class 5” switching facilities, which transmit the most localized calls. Limited international traffic also passes through the switches.

A government official said the N.S.A. intended to single out only foreigners on Qwest’s network, and added that the agency believed Joseph Nacchio, then the chief executive of Qwest, and other company officials misunderstood the agency’s proposal. Bob Toevs, a Qwest spokesman, said the company did not comment on matters of national security.

Other N.S.A. initiatives have stirred concerns among phone company workers. A lawsuit was filed in federal court in New Jersey challenging the agency’s wiretapping operations. It claims that in February 2001, just days before agency officials met with Qwest officials, the N.S.A. met with AT&T officials to discuss replicating a network center in Bedminster, N.J., to give the agency access to all the global phone and e-mail traffic that ran through it.

The accusations rely in large part on the assertions of a former engineer on the project. The engineer, who spoke on the condition of anonymity, said in an interview that he participated in numerous discussions with N.S.A. officials about the proposal. The officials, he said, discussed ways to duplicate the Bedminster system in Maryland so the agency “could listen in” with unfettered access to communications that it believed had intelligence value and store them for later review. There was no discussion of limiting the monitoring to international communications, he said.

“At some point,” he said, “I started feeling something isn’t right.”

Two other AT&T employees who worked on the proposal discounted his claims, saying in interviews that the project had simply sought to improve the N.S.A.’s internal communications systems and was never designed to allow the agency access to outside communications. Michael Coe, a company spokesman, said: “AT&T is fully committed to protecting our customers’ privacy. We do not comment on matters of national security.”

But lawyers for the plaintiffs say that if the suit were allowed to proceed, internal AT&T documents would verify the engineer’s account.

“What he saw,” said Bruce Afran, a New Jersey lawyer representing the plaintiffs along with Carl Mayer, “was decisive evidence that within two weeks of taking office, the Bush administration was planning a comprehensive effort of spying on Americans’ phone usage.”

The same lawsuit accuses Verizon of setting up a dedicated fiber optic line from New Jersey to Quantico, Va., home to a large military base, allowing government officials to gain access to all communications flowing through the carrier’s operations center. In an interview, a former consultant who worked on internal security said he had tried numerous times to install safeguards on the line to prevent hacking on the system, as he was doing for other lines at the operations center, but his ideas were rejected by a senior security official.

The facts behind a class-action lawsuit in San Francisco are also shrouded in government secrecy. The case relies on disclosures by a former AT&T employee, Mark Klein, who says he stumbled upon a secret room at an company facility in San Francisco that was reserved for the N.S.A. Company documents he obtained and other former AT&T employees have lent some support to his claim that the facility gave the agency access to a range of domestic and international Internet traffic.

The telecommunications companies that gave the government access are pushing hard for legal protection from Congress. As part of a broader plan to restructure the N.S.A.’s wiretapping authority, the Senate Intelligence Committee agreed to give immunity to the telecommunications companies, but the Judiciary Committee refused to do so. The White House has threatened to veto any plan that left out immunity, as the House bill does.

“Congress shouldn’t grant amnesty to companies that broke the law by conspiring to illegally spy on Americans” said Kate Martin, director of the Center for National Security Studies in Washington.

But Bobby R. Inman, a retired admiral and former N.S.A. director who has publicly criticized the agency’s domestic eavesdropping program, says he still supports immunity for the companies that cooperated.

“The responsibility ought to be on the government, not on the companies that are trying to help with national security requirements,” Admiral Inman said. If the companies decided to stop cooperating, he added, “it would have a huge impact on both the timeliness and availability of critical intelligence.”

SHOULD immunity be granted to companies who broke the law in the past to "help fight terrorism"?

SHOULD the government take full responsibility for the leak of information?

Lockdown Disscussion

How is our school being treated in the eyes of the media? What suggestions do you have to prevent something like this from happening again? Should both the 15yrd old and the 16yr old be treated the same way in the eyes of the law? Why are they being treated differently?



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