El Chapo’s Appeal Hinges on a Story by VICE News

An attorney for imprisoned Sinaloa cartel leader Joaquín “El Chapo” Guzmán-Loera argued Monday that his client’s 2019 conviction and life sentence should be overturned because of a story published by VICE News.

Addressing a three-judge panel from the Second Circuit Court of Appeals in New York, lawyer Marc Fernich cited our interview with an anonymous juror as the basis for claims that El Chapo did not receive a fair trial, at one point reading an excerpt aloud to the court.

The story—published February 20, 2019, eight days after Chapo’s three-month trial ended with a unanimous guilty verdict—was based on an exclusive interview with a person who served on the jury, where all members were kept anonymous by the court due to security concerns. The juror who spoke out admitted to both witnessing and committing misconduct, including following the case on social media and lying to the judge when questioned about seeing evidence not presented in court.

Fernich made the case that letting the conviction stand would not only be unfair for El Chapo, it would set a dangerous precedent where infamous defendants in future cases could be held to different standards simply because they are accused of heinous or high-profile crimes.

“If corners are cut to incapacitate a perceived public enemy like my client, some government lawyer 50 or 100 years from now will hold up this case as precedent to take similar shortcuts for the next El Chapo,” Fernich said. “If there is no procedural justice for the reputed worst among us, there can be none for any of us—not least those falsely charged.”

“Some government lawyer 50 or 100 years from now will hold up this case as precedent to take similar shortcuts for the next El Chapo.”

The Second Circuit panel did not immediately issue a ruling, but at least one of the three judges indicated that Fernich had seemingly raised a valid claim. “Sounds like not a bad argument,” Circuit Judge Gerard E. Lynch said at one point during the hearing.

Attorneys for the Justice Department pushed back against Fernich’s claims, calling the juror’s VICE News interview “anonymously sourced” and “uncorroborated,” and based on “hearsay and double hearsay, and with allegations that are easily controverted by the trial record.”

Our story was based on a two-hour video chat with the anonymous juror. While that person’s name was not known publicly, their face was easily recognizable because they sat in open court each day during the trial. The misconduct claims could not be independently verified because no other jurors came forward to be interviewed.

Under dispute in El Chapo’s appeal is whether Judge Brian Cogan, who presided over the trial, should have held a post-conviction hearing to investigate the juror misconduct claims. Cogan said at the time that he chose not to subject the jury to further scrutiny because there was “a mountain range of evidence” that proved El Chapo’s guilt.

One piece of evidence the jury was not supposed to hear was an explosive claim from a cooperating witness that El Chapo drugged and raped girls as young as 13. El Chapo denied the allegation and it was not presented in court during the trial, but was made public on the eve of jury deliberations when Cogan ordered a tranche of documents to be unsealed.

The juror recounted reading about the situation on Twitter before arriving at court, and warning other jurors that Cogan would likely question them about it in private. At least five jurors and two alternates were “for sure” aware of the news reports, the person said.

“I had told them if you saw what happened in the news, just make sure that the judge is coming in and he's gonna ask us, so keep a straight face,” the juror said. “So he did indeed come to our room and ask us if we knew, and we all denied it, obviously.”

The juror said the child rape allegations didn’t seem to factor into the guilty verdict. Cogan said a hearing to investigate was not necessary because any “average jury” would have convicted Chapo no matter what they saw about him in the media.

On Monday, Fernich claimed that Cogan had “whitewashed” the inquiry into whether the jury was tainted by exposure to the child rape allegations. The appellate judges offered some hypothetical scenarios about what could have happened instead.

“One is to bring in the reporter and put him in prison for civil contempt if he refuses to divulge his source,” one judge said. “The other would be to bring in all 16 jurors and question each of them again about what they may have done or heard.”

“This guy is going to be in a box for the rest of his natural life.”

The judges worried, however, that such an inquiry would have amounted to “exactly the kind of fishing expedition where all of the jurors get interrogated,” which courts generally seek to avoid.

Under questioning from the Second Circuit panel, the government stopped short of saying there would never be a situation where an anonymously-sourced news report would justify a hearing to investigate juror misconduct, but called the VICE News story “weakly authenticated.”

“This type of evidence simply does not require a hearing,” Assistant U.S. Attorney Hiral Mehta said.

If the appellate court decides to overturn the conviction, Chapo would likely be retried in the Eastern District of New York, in the same Brooklyn courthouse where he was convicted the first time around. The blockbuster trial was held under intense security and featured dramatic testimony from multiple high-profile cooperating witnesses, including the brother and son of El Chapo’s longtime partner Ismael “El Mayo” Zambada. A do-over would come at a steep cost to taxpayers and could prove to be a logistical nightmare.

Fernich, however, argued that a new trial is necessary because it’s the only way to ensure fairness in the system, not just for Chapo but also other defendants in the years to come. He invoked the names of billionaire sex trafficker Jeffrey Epstein, who died in 2019, and convicted NXIVM cult leader Keith Raniere, arguing that if Chapo’s jury was in fact exposed to child rape allegations in the news, there was no way the jurors could have remained impartial, even if he was credibly accused of murder, torture, and other horrific acts of violence during the course of the trial.

“These people are the most reviled members of society,” Fernich said. “They're savaged in the press. You go into a prison, a pedophile is the lowest of the low, no matter how many murderers there are there.”

Fernich also said Monday that holding Chapo in solitary confinement in the months leading up to the trial unfairly hindered his ability to assist in his own legal defense, an argument that seemed to hold less water with the Second Circuit judges. Fernich said there were signs that Chapo’s “mental and physical state were deteriorating,” but the judges noted that even with the tight restrictions the defense team was able to meet with their client for 20 hours per week.

El Chapo is currently housed in ADX Florence, a federal “supermax” prison in Colorado where he’s in perpetual solitary confinement and under special restrictions that limit his contact with the outside world to just his attorneys and a few close relatives.

“This guy is going to be in a box for the rest of his natural life,” Fernich said. “I'm not asking you to play violins for him. I'm not playing any violins for him either. This is very, very serious business.”

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