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‘I’m Not Asking You to Play a Violin’: ‘El Chapo’ Lawyer Urges Appellate Court to Grant New Trial, Claims ‘Breathtaking Jury Misconduct’ Took Place



Nearly three years after his client’s convictions on federal drug trafficking charges, drug lord Joaquin “El Chapo” Guzman’s lawyer asked a federal appeals court for a new trial because of alleged “breathtaking jury misconduct” and “stifling” solitary confinement at his since-shuttered jail.

“The Elephant in the Room”

“I won’t ignore the elephant in the room with a defendant as infamous as ‘Chapo’ Guzman,” Guzman’s attorney Marc Fernich said during Monday’s appeal before the Second Circuit, noting that the U.S. criminal justice system has been filed with “popular boogeymen” like John Gotti, Al Capone, and Manuel Noriega.

“Some government, 50 or 100 years from now, will hold up this case as precedent to take similar shortcuts for the next ‘El Chapo,’ the perverse result [being] incremental rights erosion and a distinct, limited class of defendants beyond application of conventional legal rules in precisely the cases where the protections matter most,” he added.

After Guzman escaped twice from maximum security lockups in Mexico, U.S. authorities took extensive measures to make sure that the Sinaloa Cartel leader appeared at his trial. Guzman was detained before his trial at New York’s Metropolitan Correctional Center, which the Department of Justice slated for closure earlier this year following complaints of mistreatment.

Guzman’s appeal now claims that the brutal conditions inside that facility require a new trial, but a three-judge panel of the Second Circuit Court of Appeals appeared unmoved by this argument.

U.S. Circuit Judge Gerard Lynch noted that Guzman had extensive time with his defense attorneys.

Pressed by U.S. Circuit Judge Jon O. Newman, Fernich conceded that the defense had no specific evidence that Guzman’s confinement interfered with his defense, other than “generalized” grievances about the extended stretch to solitary confinement.

“I’m Not Asking You to Play a Violin for Him”

Guzman’s attorney appeared to be more successful in raising questions about what he described as “breathtaking jury misconduct” recounted in the 2019 VICE News article, “Inside El Chapo’s jury: A juror speaks for first time about convicting the kingpin.”

Sourced to an anonymous juror, the article depicted the “El Chapo” jury as one that routinely flouted U.S. District Judge Brian Cogan’s rules by following media coverage. The juror claimed to be aware of that news outlet’s reporting that Guzman allegedly raped girls as young as 13 years old, reportedly calling “the youngest of the girls his ‘vitamins’ because he believed that sexual activity with young girls gave him ‘life.’”

Judge Cogan declined to hold an evidentiary hearing into allegations of juror misconduct, averting an investigation that could have sought to compel a journalist to reveal a source.

Fernich told the Second Circuit that this was the wrong choice.

“I mean, this guy is going to be in a box for the rest of his natural life,” Fernich said, referring to the drug lord. “I’m not asking you to play a violin for him. […] This is very, very serious business for everybody concerned, everybody concerned, and this is his last shot. And he has the right to have this answered. And maybe there’s nothing at all there, and this person was a whack job and he wanted publicity or he’s grandiose. I have no idea. None of us has any idea.”

The attorney argued that is why an evidentiary hearing was warranted.

“It’s troubling,” Fernich said. “Who could leave this cloud of uncertainty in a case of this magnitude. That’s not what we do here.”

Assistant U.S. Attorney Hiral Mehta denied that jury misconduct occurred, calling the VICE report—sourced to a single, anonymous juror—untrustworthy.

“This is hearsay and double-hearsay,” Mehta asserted.

But the reliability of the information was not at issue in the lower court.

“They Wanted to Sit on the Trial of the Century”

Judge Cogan, the trial judge, found that a new trial would not be warranted even assuming the report was true. Fernich said that jurors’ denials of violating the judge’s instructions could not be taken at face value.

“They didn’t want to be dismissed,” Fernich said of the jurors. “They wanted to sit on the case of the century. It’s better to be on the case of the century instead of watching it on TV.”

Despite Guzman’s notoriety as a drug lord, his lawyer told the court that the pedophilia allegations prejudiced his client.

“Raping young girls, they think that’s something you know that’s just, oh hold on— prosaic?” Fernich asked, audibly exasperated. “What about Epstein? What about Raniere? These people are the most reviled members of society. They’re savaged in the press. They go into a prison a pedophile, it’s the lowest of the low.”

Though the MCC is now closed, the prison where Guzman has been incarcerated since his conviction also has a gloomy reputation. ADX, a Supermax in Florence, Colo., has been likened to the “Alcatraz of the Rockies.”

Guzman’s appeal delved into the close watch MCC officials kept to make sure their high-profile inmate did not escape, such as lights in the drug lord’s cell at all hours.

Asked for the justification for prison officials illuminating Guzman’s cell, Assistant U.S. Attorney Brett Reynolds said: “I would only be speculating, but that was a security measure to, I assume, help ensure that everything was safe and that the defendant was still there and still alive, still healthy.”

Fernich said that jail officials’ justification brings to mind the expression: “You can’t make this up,” saying that guard feared an “elaborate escape plan” requiring them to overturn the furniture to check.

Guzman’s second prison escape in Mexico involved a rectangular opening in the shower area of his cell leading to a nearly mile-long tunnel, The Washington Post reported.

(Image via Alfredo Estrella/AFP/Getty Images)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."