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US Department of Justice violates Luna crime scene
No Man, No Problem
While Jonathan Luna lies dead in a stream,
his DOJ superiors rush through a
questionable drug plea deal
by Bill Keisling
On the morning of Jonathan Luna's death, December 4, 2003, at precisely 9:30 am, Judge William Quarles calls Courtroom 3-A to order.
Jonathan Luna in court
Downloads:Court transcript December 4, 2003
Deon Smith plea agreement
Walter Poindexter plea agreementIndictment of Smith and Poindexter
Jonathan Luna is not seated at the prosecution table. He's late, two days in a row! Quarles must think.
Unknown to Judge Quarles, Luna is dead, his body slumped in a cold stream in Lancaster County, as yet unidentified by police. It will take several hours before Luna's body is identified and his former boss, U.S. Attorney Tom DiBiagio, notified of the death.In the Baltimore federal courthouse, meanwhile, defendants Deon Smith and Walter Poindexter, and their attorneys, Kenneth Ravenell and Arcangelo Tuminelli, sit waiting at the defense table for court to begin.
The court reporter, Ned Richardson, sits at his stenographer's machine, ready to take down what we are about to read. Richardson is about to take down a very curious end to a very curious case. Richardson will unknowingly be a stenographer for a murder investigation.
At the prosecution table now sits Assistant U.S. Attorney (AUSA) James Warwick, Luna's former supervisor. Warwick is the chief of the criminal division in the Baltimore U.S. Attorney's office. Warwick as such is one step below U.S. Attorney DiBiagio.
Warwick had conferred with Luna the night before about whether it would be lawful to allow defendant Poindexter off the hook for murder, in order to bury this case.Warwick was also the assistant U.S. attorney who one investigator complained to me was always pressuring him to open phony cash storefronts in his investigations. The investigator expressed concern that Warwick's pet cash storefronts, run as they were by a network of unaccountable agents and informants, were troubling to him. "It breeds corruption," I was told. Warwick has handled a number of drug cases, including an early 2004 case involving a shipment of 154 kilos of cocaine seized from a Jamaica, New York man.
"Good morning, your honor," Warwick now tells Judge Quarles. "I do apologize for, I guess, my sudden appearance before the court."
"Always a pleasure to see you, Mr. Warwick," Quarles says.
"Thank you very much, judge," Warwick continues. "Yesterday, I became involved in some discussions with Mr. Tuminelli relative to his client and so I have obtained at least a limited degree of knowledge of what the issues are. I do believe that we do have something worked out with Mr. Tuminelli. Mr. Luna was finalizing the agreement. I spoke with Mr. Luna last night. I don't know where he is at the moment. We are trying to locate him, and trying to locate the final agreement."
The uncompleted plea agreement, in fact, was up in Luna's office, in his laptop.
"Uh huh," Quarles mutters.
It's astonishing that Warwick and DiBiagio even allowed the plea agreement to move forward while Luna's whereabouts remained unknown. What was the rush?
One former federal investigator points out, "Here's a violent heroin case and the AUSA (assistant U.S. attorney) is missing, and they push ahead with a plea agreement he was having trouble with? DiBiagio should have gone down to the courtroom and told the judge Luna was missing and hold everything until he can be located."
In a hurry they nonetheless were, and proceed with the plea agreement Warwick and DiBiagio did. The lawyers go to the bench and confer with the judge.
Federal Judge William QuarlesThey speak to Quarles about the conditions of the plea deal. Tuminelli explains that he and Luna consulted with Warwick the might before. "Mr. Warwick sat in and gave some guidance," Tuminelli says, "and I understood that we had a plea agreement."
"Someone told me that Mark Cohen had to be consulted," Quarles says. Cohen was Baltimore's assistant state's attorney for homicide prosecutions.
"He was consulted," Tuminelli says.
"He was consulted, your honor," Luna's former co-counsel, Vivien Cockburn, agrees. "And he has spoken to the victim's parents. And they are-- as part of the plea agreement, the state will not proceed in any manner--."
"On the murder?" Quarles asks. "The alleged murder?"
"Well, actually, the murder or any charges in state court that resulted out of the conduct that was the basis for this indictment," Tuminelli says.
"By the way, give Mr. Cohen my regards, if you would," Quarles says.
"I will," Cockburn says.
"With regard to Mr. Poindexter," Tuminelli continues, "I believe that we did work out the terms of the plea agreement. I spoke with Mr. Luna at 9:00 pm last night."
"Uh huh," Quarles says.
"He called me at home and said, you know, 'I just want to make sure that we got all the details,' he went over the details and I said that is correct. He said, 'I left the office but I have to go back and complete the agreement.'"
"Okay," Quarles says.
"And he was supposed to fax the agreement to me sometime last night," Tuminelli says.
"Have you seen the paper yet?" Quarles asks.
"No, because he was supposed to fax it during the evening. It was not faxed," Tuminelli says. Why was that?
Federal nexus:
Luna forced to make unlawful plea deal?
Luna, since yesterday in court, had deep doubts about the legality of the proposed plea deal.
Luna several years before his death. For more Luna photos click here.After court yesterday afternoon, Luna and the two defense attorneys were consumed in argument as they left the courtroom and walked down the hall, arguing as they went, looking for an office to continue their disagreement over the plea deals. Luna's state of mind, after a bad day in court, was combative and testy. His state of mind of course is important. Luna did not seem at all depressed. Nor did he act like a man about to throw in the towel, professionally or personally. Rather, he's angry and combative, caught between a rock and a hard place, stuck where he didn't want to be, and fighting.
Luna and defense attorneys Ravenell and Tuminelli exited the courtroom and immediately began heatedly arguing over the terms of the plea deals, Ned Richardson, the court reporter, remembers. They couldn't agree on the agreements. The three walked a brief distance down the hall and continued their heated arguments outside the office of court reporter Ned Richardson, who himself has just returned with the court record.
"My office is near the courtroom," Richardson told me. "I was in my office on my computer working on the trial transcripts. I heard Jonathan, Ravenell and Tuminelli outside in the hall arguing about conditions of the plea agreement." Their disagreement was heated, loud and disruptive, Richardson vividly remembers.
"They were making so much commotion I was afraid I'd make some mistake with my computer and my notes," Richardson says. He says he stuck his head out his office door and told them, "Take it somewhere else, guys."They find an office. Defendant Smith, through his lawyer, agrees to plead guilty to one count of distribution of heroin and possession of a firearm for purposes of drug trafficking. Poindexter pleads guilty to three counts of heroin distribution. The conspiracy counts against both are dropped. Luna further agrees, Tuminelli says, to reduced sentencing guidelines.
But there's a problem. A serious problem. In his meeting with Ravenell and Tuminelli, Luna finds himself in another deepening dilemma. Tuminelli demands, as part of the deal, that Luna drop all charges against his client Walter Poindexter for the alleged murder of Alvin Jones.
Problem is, by law, Luna knows he can't do that.
Luna knows that the murder of Alvin Jones was drug related. Evidence and witnesses Luna produced suggest Poindexter shot Jones because he thought Jones had burglarized his drug stash house.
Luna in his high school cafeteria in the Bronx in the 1980sThat Jones' murder should be viewed as drug related is endorsed by no less an authority than the White House. A 2000 White House position paper titled "Drug Related Crime," issued by the Executive Office of the President and the Office of National Drug Control Policy defines the crime. A drug-related crime is not just a crime committed while the perpetrator is under the influence of drugs, the paper points out. It includes violence or other crimes committed by those involved in drug trafficking.
In a section titled, "Drugs generate violent crime," the White House paper states, "Trafficking in illicit drugs tends to be associated with the commission of violent crimes. Reasons for the relationship between drug trafficking and violence include the following: ...The tendency toward violence of individuals who participate in drug trafficking." Drug-related offenses include, according to the paper, "offenses connected to drug distribution itself." The paper concludes, "murders related to narcotics still rank as the fourth most documented murder circumstances out of 24 possible categories."
The administration of President George W. Bush publicly advocated prosecuting such drug-related murders. "The best way to prevent crimes with guns," Bush said while campaigning in October 2004, "is to prosecute crimes committed with guns."
When Luna and the FBI agents working with him took control of the Smith-Poindexter case from the local police in early 2002, the federal government assumed responsibility to prosecute the murder of Alvin Jones, as a drug-related offense.
The drug-related nature of Jones' killing over the burglary of the stash house created what's called a "federal nexus" in this drug conspiracy case, demanding prosecution by the feds.
Although the word sometimes enjoys slightly different usage by the legal profession, nexus refers to a link, a tie, or a connected series or group.
Luna knows that an abundance of federal statutes demand prosecution and severe penalties for murders committed in the course of drug or other racketeering enterprises. For example, the Violent Crime in Aid of Racketeering Act (VICAR 18 U.S.C. § 1959[a]), often applied in cases like this, demands prosecution when the murderer's "general purpose... (is to) maintain or increase his position in the enterprise." The federal death penalty, moreover, is provided in cases of "murder committed by the use of a firearm during a crime of violence or a drug trafficking crime (18 U.S.C 930)," and, "murder involved in racketeering offense (18 U.S.C. 1959)." These aren't obscure prosecutions, but everyday events in federal courts across the country.
Case after case of homicide prosecutions are routinely brought by the feds against drug traffickers like Poindexter. (To see for yourself, conduct a web search for "drug-related murder federal nexus.") In fact, critics complain that blacks and other minorities are more likely than whites to face the death penalty for these crimes.
Was Luna victim of Justice Department politics?
In this case, Poindexter, a black, career offender, has only one thing going for him: the U.S. Attorney's office must now protect itself from scandal by dropping a murder case against him.
In the course of the trial Luna made it a point to have Judge Quarles understand that the FBI's star witness, informant Warran Grace, was running around dealing heroin and shooting up his neighborhood while under suppposed FBI supervision and employment. Quarles ordered an investigation of the FBI's handling of informant Grace.
Jonathan Luna at his DC law office in the 1990s.
The plea deal, hurriedly approved by Luna's supervisors, was meant to stop the investigation of the FBI: U.S. Attorney DiBiagio's office was now throwing the case to protect himself, and the Justice Department, not the public.
But this strategy only created another scandal, one that amazingly points back to another tragedy involving U.S. Attorney DiBiagio's peculiar brand of dishonesty, and incompetence.Not only does the federal criminal code demand prosecution for drug-related murders, significant government resources, and congressional oversight, are focused on the issue of drug-related murder. This is particularly so in Baltimore, where drug-related murders remain a problem. The Drug Enforcement Administration maintains several High Intensity Drug Trafficking Area (HIDTA) task forces in Baltimore, including "a REDRUM group, whose main focus is to investigate drug trafficking organizations with a nexus to drug-related homicides," the DEA's Preston L. Grubbs, Special Agent in Charge of the Baltimore District Office, told a House Government Reform subcommittee in July 2003, following the 2002 Dawson tragedy, in which a family was burned to death in their home by a drug dealer. The dealer accused of fire-bombing the family, Darrell Brooks, had been in and out of jail with little or no supervision. (Emphasis mine.)
"Unfortunately, the Dawson family tragedy highlights in many ways the problems we face in combating the drug trafficking organizations operating in Baltimore and the violence associated with them," the DEA's Grubbs told Congress. "Following that horrible tragedy, I made all investigative resources of the Baltimore DEA office available to target the perpetrators of this heinous crime as well as to target the drug distribution organizations in the Dawsons' neighborhood."
That was the Justice Department's public position. Behind the scenes, Jonathan Luna knew, it was a much different story.
Luna knew it wasn't only about law or drug policy. In U.S. Attorney DiBiagio's office it was often about politics.
Following the Dawson murders, hundreds of enraged citizens clamored for accountability at city meetings and neighborhood rallies across Baltimore. The brunt of the blame fell on Baltimore Mayor (and now Governor) Martin O'Malley and his then-police commissioner, Ed Norris. "This is our moment of crisis," O'Malley told the Washington Post, which described the political fallout from the Dawson fiasco as an "atomic shock."
Luna's boss, U.S. Attorney DiBiagio, attempted to make political hay of the Dawson tragedy.DiBiagio soon found himself increasingly criticized in Maryland and Washington DC as a politically motivated prosecutor who used the press. DiBiagio, for example, once ordered his staff to produce, "Three 'Front-Page' White Collar/Public Corruption Indictments" before the coming November election.
DiBiagio not only sought criminal investigations of Police Commissioner Norris and the O'Malley administration.
U.S. Attorney DiBiagio noisily assumed federal jurisdiction of the Dawson-Brooks arson case and cagily positioned himself as a white knight unconnected to the "revolving door heroin dealer" scandal. Dealer Brooks was sentenced to life behind bars. "He's got another fifty to sixty years to think about what he did every day he sits in jail," DiBiagio told the press in 2003. "What a colossal waste. Seven people are murdered by this drug punk."
What DiBiagio didn't mention was the rampaging drug punks under care of his own office. Few people knew about that. Jonathan Luna was one of the few who did.
What did Luna know?
On the same day Baltimore's Dawson family was burned to death by a heroin dealer, October 16, 2002, Luna's FBI informant in the Smith-Poindexter case, Warren Grace, was caught hiding heroin in his SUV. The FBI turned out not to have been supervising informant Grace very well. It wouldn't make a very nice "Front-Page" headline for DiBiagio.
In court, on the day before his death, Luna was now forced by his superiors to entertain granting Poindexter protection from a drug-related murder, in order to cover-up the Justice Department's own failures to protect the Dawsons, and others, including, now, Alvin Jones.
As Luna was about to find out, murder can't so be easily swept under a rug.
Except, perhaps, his own.
The day before his death, in court, Luna expressed doubts to defense attorneys about the plea deal, due to the prickly problem of Poindexter's murder of Alvin Jones.
On December 3, after court, as night descended, Luna's doubts continued to mount. He was so concerned he conferred with another, more senior prosecutor in the office: AUSA James Warwick.
Luna's contacts within his office become part of the mystery of his death.
'A low-level assistant U.S. attorney like Luna does not have the power to approve, or even authoritively offer, a plea deal. The deal must be approved by higher-ups'
A low-level assistant U.S. attorney like Luna does not have the power to approve, or even authoritively offer, a plea deal. The deal must be approved by higher-ups. In many jurisdictions, the criminal chief approves the deals. In some jurisdictions, plea agrements are approved by the U.S. attorney personally. Therefore, Tom DiBiagio or his chief criminal prosecutor -- Warwick -- were necessarily part of Luna's interactions on his last night.
Luna and Tuminelli met with Assistant U.S. Attorney James Warwick on the afternoon of Luna's disappearance. "I had a conversation ... with Mr. Warwick, and Mr. Luna, primarily with Mr. Luna," Tuminelli agrees. "Mr. Warwick sat in and gave some guidance."
Warwick, for his part, says Luna and Tuminelli consulted with him about the problem of the pending murder charges against Poindexter. Warwick recalls that Poindexter's own lawyer, Tuminelli, used the phrase "related conduct" when talking about Jones' murder.
"The concern that Mr. Tuminelli had was the related conduct on the homicide," Warwick recalls. Warwick told Judge Quarles that he questioned both Luna and Tuminelli. "And my questions to both Mr. Tuminelli and to Mr. Luna were essentially it's related conduct if we can establish a federal nexus, specifically that we can establish that the murder was related to a drug crime or a drug transaction."
In other words, was Jones' murder tied to the Smith-Poindexter Stash House drug conspiracy? Certainly it was.
Yet, Warwick says, there came a moment when he flat out asked Luna whether there was any proof, or evidence, that Jones' murder was drug related.
Luna, we know, filed court documents stating that he, and the police, had plenty of proof.
In Luna's own words, submitted in his own court documents, there was much hard evidence, even several witnesses, that Jones' murder was drug related.
There were the early interviews conducted by the Baltimore homicide detectives of informant Warren Grace, a heroin dealer who would later become the FBI's star witness in the case.
Grace "was cooperating with the Baltimore city police on the homicide," Luna told Judge Quarles. There was a recording made of Grace's statements to the Baltimore homicide cops. Tuminelli told Judge Quarles that there existed a "recording of Mr. Grace being interviewed by homicide detectives in Baltimore city." So transcripts would even be available. That's hard evidence.
There was even a FBI 302, or investigative memo, on Jones' murder. Tuminelli told Judge Quarles at a bench conference, "Mr. Ravenell and I had a telephone call one day and I mentioned the (Jones murder) 302, or I made reference to something in a 302," Tuminelli recalls. "And he said, 'What are you talking about?' And I said I have this 302 and it says such and such. And one of the documents that he didn't have that I had was the interview of the recording of Mr. Grace being interviewed by homicide detectives in Baltimore city." The FBI 302 represents more evidence.
Jonathan relaxes visiting friendsThen there are all the references to the murder that Luna himself papered into the file, back when he was still threatening Poindexter with the death penalty. It's about the only thing Luna bothered to commit to writing in the file. The May 2003 indictment of Poindexter reads, "Members of the conspiracy ...utilized physical force against members of the conspiracy and against members of rival drug conspiracies to maintain their reputation in the community, to preserve their own territory, to punish members of the conspiracy who cheated or stole from the conspiracy, and to defend and maintain the loyalty of the members of their own organization." The indictment explains, "On January 22, 2001, Walter Oriley Poindexter, a/k/a 'Fella," shot and killed Alvin Jones, a/k/a 'L,' because Poindexter believed that Jones was responsible for burglarizing the stash house where conspirators stored their heroin, money and firearms."
Luna, four weeks before the trial, specifically told the court there was evidence to establish Poindexter's guilt in a drug-related murder. In his October 30, 2003, brief seeking to try Smith and Poindexter together, Luna told the court, "During the course of the conspiracy, Poindexter was advised that Alvin Jones had burglarized one of Poindexter's stash houses. Believing that Jones had burglarized the stash house, the government's evidence will show that upon finding Jones, Poindexter shot and killed Jones on January 22, 2001."
The evidence will show, Luna told the court, that Poindexter killed Jones in drug-related vengeance. There were even witnesses. At least two witnesses were ready to testify about the murder, Luna wrote, and he was worried about further traumatizing these witnesses. "At least two of the witnesses in this case were involuntary witnesses to the murder of Alvin Jones," Luna writes. "Two separate trials will require these witnesses to relive horrific experiences of witnessing the murder of a human being.... Moreover, the emotional burdens from testifying just once may cause some of these witnesses to avoid testifying a second time, thus unfairly causing prejudice to the Government's case and the victims' interest in justice."
Merciful heavens, let us not forget, as Luna writes, the victim's interest in justice. There was Jones' father, who overheard the phone conversation Jones had with Poindexter's girlfriend, warning him of Poindexter's planned revenge. "Alvin explained, 'Some bitch is accusing me of robbing some house,' or words to that effect."
And on and on. There was even the FBI recording of January 2, 2003, mixed in with the hundred hours of surveillance tapes, which contains, in Tuminelli's words, a "conversation that Mr. Grace has had with Mr. Smith, and they are discussing... the allegation that Mr. Grace had talked to the Baltimore city police homicide department about the murder." Everybody, it seems, knew that Poindexter killed Jones over the stash house burglary, even co-defendant Deon Smith, who could now be forced to cooperate under his plea agreement.
Jonathan walks from car. He's wearing eyeglassesInstead, Poindexter was to be let off the hook, AUSA Warwick would tell Judge Quarles after Jonathan was dead.
At trial, Judge Quarles even went out of his way to instruct the lawyers, when this January 2003 tape was played for the jury, "Why don't the three of you go over there and instruct (Grace) again. Make sure that someone is holding the microphone and explain to him that he is to answer your literal questions and only those questions and not to volunteer anything," about Jones' murder.
Making matters worse, Luna knows, Quarles is a judge who takes recorded evidence like this seriously. Quarles refused to dismiss the case on the strength of evidence found on these tapes. This judge, if pressed, Luna must know, will believe the rather copious evidence that Poindexter's murder of Jones was drug related. "People's liberty are conditioned upon what things that people have done," Quarles says. "That's the way the world is, in this little part of it."
In short, there was plenty of evidence, and witnesses, that Poindexter killed Jones in a drug-related murder. There was a federal nexus demanding Luna prosecute the murder, in the "victim's interest of justice," in Luna's words.
All this prevented Luna from writing a lawful plea agreement forgiving the murder. This in turn meant the trial must go forward, and the FBI's mishandled informant, Warren Grace, would be examined by defense lawyers "as broadly as possible" about the "forms of consideration that he has received from the government." The sex, the freedom, the drugs, money and guns.
Yet, amazingly, on the morning of Luna's death, his superior, Assistant U.S. Attorney James Warwick, would tell Judge Quarles that he asked Luna the day before whether Luna could "establish that the murder was related to a drug crime or a drug transaction." Warwick says Luna told him he didn't have any evidence.
"Mr. Luna represented that he did not have that proof," Warwick would tell Judge Quarles as Luna's body lie broken in the creek. Note that Warwick uses the lawyer's word, "represented." That's what Luna told me, Warwick is saying. Warwick interestingly isn't himself taking responsibility for this false claim.
If there was no evidence, Warwick now says he told Luna, it was possible to issue a plea agreement stating the murder would not be prosecuted. Warwick says he even conferred with others in the U.S. Attorneys office.
"And I told him (Luna), in my opinion," Warwick says, "which I have gone through my-- other people in the office, is that if we cannot establish a federal nexus, it's not related conduct under the guidelines."
Meanwhile back in the courtroom
So, Luna out of the way, it happened like this in the courtroom on the morning of Luna's death:"Generally, what's the deal?" Quarles asked from the bench on the morning of December 4, 2003, while Luna lies dead in the frozen stream.
"Generally, the deal--," Tuminelli begins.
"I'm sorry," AUSA Warwick interrupts. "The deal, as I understand it, is that he (Poindexter) will plead to the drug charge. The concern that Mr. Tuminelli had was the related conduct of the homicide, and my question to both Mr. Tuminelli and Mr. Luna (was) essentially it's related conduct if we can establish a federal nexus, specifically that we can establish that the murder was related to a drug crime or a drug transaction. Mr. Luna represented that he did not have that proof, and I told him, in my opinion, which I have gone through my-- other people in the office, is that if we cannot establish the federal nexus, it's not related conduct under the guidelines."
Again, here Warwick uses the lawyer's word "represented." That's what Luna told him, he's saying.
"Okay," Quarles says.
Jonathan Luna"And any deal with regard to Mr. Tuminelli's client's state liability is between Mr. Cohen and Mr. Tuminelli, and that has been resolved," Warwick says. He's incorrect about this, Tuminelli would say.
"Okay," Quarles says.
Warwick now says something odd. He says he knows discussion of the murder has previously entered into the case. This is fairly in-depth knowledge for an attorney who says he was just "consulted" for a short period the previous evening. "But I felt it important," Warwick adds, "to bring to the court's attention that despite the fact that the homicide had been referenced in earlier discussions, it needed to be clear that, absent the federal nexus, which we did not have, it's out of the case for our purposes."
The murder of Alvin Jones now conveniently swept under the carpet, like Luna himself, the lawyers discuss with the judge the fine points of the plea agreement, including the reduction of the sentences of the two defendants. Reading this transcript in front of me, the former federal investigator choked, "My God, they're giving away the store!"
"I do apologize for not being more versed in the facts," Warwick tells the judge. Funny the things he is versed in.
"Mr. Warwick, I appreciate your infusion of sanity here on the government's side," Judge Quarles tells him. "No offense to defense attorneys." He's talking openly about his displeasure with Luna. Who else may have been even more displeased?
"I think we have been relatively sane," Tuminelli says.
With that, Warwick asks for a fifteen minutes recess to find the plea agreement Luna walked away from when he began his mystery ride the night before, shortly before midnight.
"May I ask for the court's indulgence in giving me fifteen minutes to finalize any changes with Mr. Ravenell and to find out where the heck that other document is?" Warwick asks.
"Very good," Quarles tells him.
"Thank you very much," Warwick says.
With that Warwick exits the courtroom to search Luna's office for Poindexter's incomplete plea agreement.
It remains unfinished, in Luna's laptop, on his desk, in his office. Beside his cell phone. And his glasses.
Quarles calls a recess. Afterwards, back at the bench, he asks Tuminelli, "Any progress?"
Tuminelli reports, "Mr. Warwick left with Ms. Cockburn and told me to advise the court, if the court needed information, that he was going upstairs, and I think he is trying to put together these documents, and--,"
"Have we found chief trial counsel yet?" Quarles asks. At last he's addressing the elephant in the room. Rather, the elephant not in the room.
"No," Tuminelli says.
"No luck," Ravenell says. "My understanding--."
"Has anyone called his home?" Quarles asks.
"May we approach with the agents?" Ravenell asks.
"Yes, come up."
The lawyers go to the bench with several FBI agents, including Agent Steve Skinner.
Tuminelli tells Quarles, "Apparently, judge, no one has heard from him since 9:00 o'clock last night."
Agent Skinner speaks up, curiously contradicting Tuminelli.
FBI agent: 'His glasses are in his office.' Jonathan Luna driving. Friends say he needed eyeglasses to drive. Why then did he leave his glasses behind in his office? And why was his office crime scene violated by DOJ superiors?"Your honor," Skinner says, "we called his house and we didn't get an answer. We called his wife at work and (the) last she said that she saw him (was) last night at midnight and he left again."
Angela Luna later would say she had been mistaken, that her husband had left home earlier that evening, earlier than midnight.
Skinner, most oddly of all, is talking as if he already knows a tragedy is at hand. Rather than the hip-hop comedy that has been playing in Courtroom 3-A all week.
Agent Skinner is the guy who took, by his own written reckoning, a week to figure out that his misbehaving informant Warren Grace was leaving his apartment and shooting up the hood. Even with everyone's phone ringing off the hook about it, Skinner couldn't deduce whether Grace was even in his apartment, even after Skinner finally paid a visit there. This morning, displaying remarkable deductive foresight, Skinner speaks as if he already knows Luna may be in some sort of dire trouble. He already knows about things left behind on Luna's desk and in his computer. He knows what Luna was supposed to be doing: finishing the smelly plea deal designed afterall to protect US Attorney DiBiagio and the Baltimore FBI's "Safe Streets Task Force," and Agent Skinner, from investigation in open court. He even knows that Luna, for some reason, never completed that task demanded of him.
Skinner's the guy who didn't know or care whether Warren Grace was at home. He didn't seem to care much for anyone's safety then. For all Steve Skinner should know this morning, at this moment, Luna may simply have stepped out to get a cup of coffee, to shine his shoes, or to visit his sick son, as was his reason for tardiness only the day before.
"Mr. Tuminelli spoke with him last night and he was supposed to fax down the plea agreement," Skinner continues. "It was still in his computer up in his office, and we have paged him, and his cell phone is on his desk, his glasses are in his office. We are probably going to go over to the parking garage where he-- where we park and just look for his car." (Emphasis mine.)
Court stenographer Ned Richardson here takes careful dictation. Skinner starts to say this is where Luna parks, but then stops to say it's where "we" park. From this we glean not only that the agents park where Luna parks, but also that they know the car Luna is driving. They were going to "look for his car."
More important than Jonathan: DOJ officials repeatedly violated the crime scene of Luna's office to push through the drug plea deal Luna had problems with and never completed the night before his deathRavenell interjects, "Your honor, I was going to ask the court just to take a recess until we find out what's going on. You know, as much as we're concerned obviously about the jury, and about the defendants, I mean all of us are personally concerned about Mr. Luna. I think that we need to try to let the agents focus on trying to find him."
"Well, we don't need the agents for the--," Quarles begins, speaking of the plea agreement.
"No, no, Mr. Warwick is still working on that," Ravenell says.
"So if you guys want to take off and look for him, please do," Quarles tells the agents. It's not clear from the record whether Baltimore's Detective Todd Moody is among them.
The agents exit the courtroom.
"As soon as Mr. Warwick comes, we will let you know," Ravenell tells the judge.
"Well, I will sit here," Quarles says.
Luna's former co-counsel, Vivien Cockburn, re-enters the courtroom. "Mr. Warwick has finished one agreement and would ask the court's indulgence. He is quickly doing the second one, he wants to look at it, and then he will be right down."
Quarles thanks her, and Cockburn asks to "be excused for a moment," and exits the courtroom.
In his rush to facilitate this suspicious plea deal, that was left undone by the missing assistant U.S. attorney, Warwick is actually altering evidence in what in only the matter of an hour or two will become a murder investigation. He better hurry, before Luna's office is roped off and swarming with investigators. Gotta get that phony plea deal filed! Not only are Warwick and DiBiagio not asking for a halt in the trial until they can learn what has happened to Luna, they are quickly forging ahead and altering, after all, the document Luna was stumbling on at the time of his disappearance.
If they're so damn concerned about Luna, as Ravenell and Skinner have us believe, why doesn't Warwick, the seasoned criminal drug prosecutor that he is, close down the crime scene, and immediately freeze everything in Luna's office? Instead he acts like a busy short-order cook, throwing dishes together in a hot kitchen. Why isn't he asked to preserve the scene by the agents, if they're so damn worried about Luna, and his actions? Instead, he's changing Luna's stalled document. The agents felt the need to "look for his car." The agents talk and act like they're aware they may be investigating a crime, while Warwick curiously and feverishly works on incomplete documents found on Luna's curiously left-behind laptop. It doesn't add up.
'Most of the plea deals were written in heaven, while other parts were scribbled in hell'
Warwick at last enters the courtroom with the two amazing plea agreements, most of which were written in heaven, while other parts were scribbled in hell. They are ready for the signatures of defendants Smith and Poindexter, and their counsel, Warwick announces. It's taken him a half hour, maybe forty-five minutes, since he left Courtroom 3-A, "to find out where the heck that other document is."
Luna, we should consider, could have completed the same task in as much, or less, time, the night before. If he had wanted. We must conclude that Luna did not want to finish the paperwork for the phony deal. He certainly had the time to do it. Before he was killed.
Why didn't Warwick and DiBiagio step in to freeze the case? Either it's an outrageous oversight or it's a serious breach of professional standards. Take your pick. At this moment they could easily be calling in the best forensic teams in the world, who could be on the scene in minutes. That call never seems to have been made, even to this day.
Instead, their man's dead, and they're altering evidence.
No hombre, no problemo.
Why? From all of the above we can deduce two facts:
DiBiagio's office obviously badly wanted, or needed, this questionable plea agreement completed and filed. Luna just as obviously didn't want to do it.
Now Luna was dead. Draw your own conclusions. The hard copies of the plea agreements, as I've pointed out, are truly remarkable documents. For the most part they were drafted and typed by Luna. Only the finishing touches have been added by Warwick.
The documents had been written on a word processor. Luna, true to what he told defense lawyers the night before, completed the paperwork for Smith's plea deal. It's neatly typed, and completed, with no cross-outs.
Poindexter's plea is altogether different. Many of the sections of Poindexter's deal were written in boilerplate court language, sharing identical language with Smith's agreement, and a thousand other plea deals. In Poindexter's deal, paragraphs specific to Poindexter have been added. A short paragraph, for example, has been inserted in Poindexter's deal letting him off the hook for the murder of Alvin Jones.
The paragraph, "Agreement with State's Attorney's Office," reads:
The Baltimore City State's Attorney's Office has authorized this Office to be bound by this agreement in the following manner: the Baltimore City State's Attorney's Office will not charge Walter Poindexter for any conduct that formed the basis of this federal prosecution, including a shooting incident that occurred on or about January 22, 2001, in Baltimore City, Maryland.
Another section, titled "Factual Stipulation," dealing specifically with Poindexter's drug offenses, was sloppily (if not hurriedly) typed. The three paragraphs in this section were slapped together, and include an extra period at the end of one of the sentences, and an uninitialed cross out. The date of one of the drug buys, originally typed as "September 23, 2002," has been altered to read September "24," by someone who had hand-drawn a 4 over the 3.
September 24 cross-over:
Luna's nexus of catastrophe
It looks at first glance sloppy. But a closer consideration of the dates September 23 and 24, 2002, reveals a time period when Luna was gravely distracted by outrageous FBI misdeeds. It is after all only a few weeks after Luna has been cc'd by Pretrial Services that FBI informant Warren Grace had removed his ankle bracelet, which quickly led to Grace's being cut loose altogether from home confinement. And it is only two or three days before Luna would discover, on September 26, 2002, that someone had stolen the $36,000 from the courthouse evidence safe. It's also a few weeks before the Dawsons would burn alive. It's a strange nexus of catastrophe for Luna, who certainly appears to be squeezed by circumstances. Luna, we know, certainly was also squeezed by FBI agents.
Sloppiest of all, an entire page from Smith's plea deal, Page 5, has simply been copied over, complete with the page header for Smith's case, which has been crossed out. "Amendment to Plea Letter of 12/3/03 to Walter Poindexter," is instead scribbled in pen on the top of this page to mark its insertion in the deal. The slapped-together page is simply stapled onto the back of Poindexter's plea. Most of the page has been crossed out by pen, except for a single boilerplate section, "Waiver of Appeal," forbidding the defendant the right of appeal should he sign the deal. Warwick didn't even take the time to have it retyped, or to even cut and paste it into the document. In this sloppy way, the moment he signed this deal, Poindexter was prohibited by the government from ever appealing the case.
"What I am going to do in making part of Mr. Poindexter's agreement," Warwick will tell Quarles, "I have just cannibalized a page with the waiver of appeal on it, which has been initialed by all parties and, Ron, I will just staple that on to the end of it," he tells the clerk. "It's part of the Poindexter agreement." It might be dirty, but it's quick.
Warwick hands the plea documents to the defendants to sign, and then he asks to step out of the courtroom.
"Your honor, while counsel is finalizing these agreement with their clients, may I just use the facility?" he asks the judge.
"Sure," Quarles says. Warwick exits the courtroom.
When Warwick returns, they begin the business of finalizing the plea agreements. Quarles asks first Smith, and then Poindexter, to stand and say whether they comprehend what they are agreeing to. They say they do.
"Did anybody use any threat or force or violence to get you to plead guilty?" Quarles asks Poindexter.
"No, they didn't," Poindexter tells the judge.
"Other than what's inside the plea agreement itself," Quarles asks, "has anyone made any promise or prediction about the sentence that I am going to impose in this case?"
"No, sir," Poindexter answers.
Tuminelli now says, "Judge, there is two matters with regard to this agreement."
"Okay," Quarles says.
Tuminelli has some concerns. He says he wants to clarify the deal not to prosecute Poindexter for the murder of Alvin Jones. He contradicts something that Warwick, a few minutes earlier, had told the judge.
"Mr. Warwick advised the court that I was in negotiations with the Baltimore City State's Attorney's office," Tuminelli says. What Warwick has said about this is not exactly the truth, the way it happened, Tuminelli feels the need to say. In his careless haste, Warwick has strangely got this wrong, too. "I was present when Mr. Luna spoke to Mark Cohen of the Baltimore City State's Attorney's office, and am aware that Mr. Cohen advised Mr. Luna that what's contained in that paragraph is Baltimore City's position. I just want to make this clear. Mr. Cohen did not say this directly to me. He said it to Mr. Luna. And Ms. Cockburn, I believe, can confirm that that's how the negotiation took place."
Luna was now dead, unable to confirm anything on this earth. They all turned to his former co-counsel, Vivien Cockburn.
"Is that correct, Ms. Cockburn?" Quarles asks her.
"Your honor, I was not present during the phone call," Cockburn says. "However, Mr. Luna did relay that conversation to me in front of Mr. Tuminelli."
"Thank you very much," Quarles says. It's amazing that Quarles, at this moment, does not stop the proceedings.
Now Warwick asks Cockburn, "And do I understand that Mr. Cohen was head of the homicide bureau in the State's Attorney's office, and did confer with the victim's family?"
"It is my understanding," Cockburn replies. But no one seems quite sure. Luna sure isn't saying.
"And, based upon those conversations," Warwick now quizzes Cockburn for the record, putting the responsibility on her, "and his evaluation of the situation, he made those representations, which Ms. Cockburn has signed onto this agreement."
Warwick signed for Luna on the rushed plea
Cockburn is a signatory to Poindexter's plea agreement, as completed by Warwick. She signs it as "Assistant States Attorney Baltimore City." Her signature does not appear on Smith's plea deal, only Poindexter's. Warwick, for his part, signs both agreements as "Jonathan P. Luna," and adds his own initials after he signs Luna's name.
"The other point, your honor, is something that was addressed at the bench. It's not part of the agreement because it doesn't need to be part of the formal agreement, but the United States has represented to Mr. Poindexter that the shooting, the fatal shooting, on January 22, 2001, which this court has previously heard about, is not, for the purposes of this federal proceeding for federal sentencing, relevant conduct in this case. And the government's position is, and I would ask Mr. Warwick to confirm this--. Because it is not relevant conduct, it will not be communicated to probation. Nor will the government contend at sentencing that it in any way is related or is relevant conduct, or is in any way relevant to the sentencing that this court will impose."
Now that Poindexter won't be prosecuted for murder, Tuminelli wants to make sure his client won't be sentenced for murder.
"That is correct, your honor," Warwick strangely guarantees. "As I explained at the bench, in my discussions with Mr. Luna yesterday, and Mr. Tuminelli, it is my understanding that the evidence regarding the fatal shooting indicates that it was not related to any narcotics distribution activity."
Now Warwick again has changed his story. At first he told the judge there was no evidence, and now he's saying that the "evidence... indicates" the murder had nothing to do with drugs. In fact, as we know, he's incorrect on both counts. Witnesses and evidence would show that Jones was murdered because he was suspected of burglarizing Poindexter's drug stash house, and for interfering with Poindexter's drug sales, Luna repeatedly told the court. That's a drug-related murder.
"Therefore," Warwick goes on, "there was no federal jurisdictional nexus between that shooting and any of the crimes that are charged in this indictment, so there would not be any federal jurisdiction over that homicide.
"That's why Mr. Cohen from the State's Attorney's office was involved in the discussions," Warwick curiously goes on. "In that it was not related to the drug activity, there is no federal jurisdiction, and it is my position and my understanding that it should not be part of the sentencing equation in terms of the pre-sentencing investigation."
With that, Warwick sweeps the murder of Alvin Jones under the rug.
Luna is gone, and cannot comment.
"Okay, that's the agreement," Quarles says, content.
Stream where Luna's body lay while the courtroom saga played on without him.Those in the courtroom still have not received word that Luna has been stabbed dozens of times times and now lies dead, his throat cut ear to ear, in an icy stream, miles away in the Pennsylvania countryside, following a wild midnight ride that crossed four states. Luna's hands, instead of wielding a pen, are now disfigured by dozens of slash marks. He will be buried wearing gloves.
Judge Quarles, concluding the proceedings, exchanges pleasantries with the lawyers.
Judge Quarles tells Ravenell and Tuminelli, "Let me again express my pleasure. I have always enjoyed our trials and other things. It was -- the word, I don't like to apply it here -- but it was fun. I enjoyed it. You are both extraordinarily good lawyers."
"Thank you, judge," Tuminelli says.
"And it's always a pleasure to have you," Quarles adds. "Please tell Marion that I did surrender you in time for the trip to Hawaii, so I hope you enjoy the time in Hawaii."
"Thank you," Tuminelli tells him.
"Thank you, judge," Ravenell says.
Quarles now turns to the prosecutors left standing. "Mr. Warwick, it's always a pleasure," he says. "Ms. Cockburn, I seem to see you under unusual circumstances."
"I was looking forward to it very, very much," Cockburn tells Quarles.
Quarles concludes, "It's always a pleasure to see you and please advise me when -- and I will be optimistic -- when Mr. Luna shows up, could you tell him I would like to see him? Tell him I'm not going to yell at him or chew him out. But I do have perhaps some fatherly advice for him."
"I will tell him that you have some concern for his welfare, and that you would like to see him," AUSA Warwick says.
"Tell him, you know, no yelling, no problem, just concern," Quarles says.
The time for fatherly advice and concern has come and gone. Skylarking Luna lies dead in a stream, the police going through his pockets, his reputation soon picked apart by the jaybirds in the FBI, and the buzzards in the press. While some all-seeing dove, or raven, wings home, to tell a tale to God.
The time for sensible, fatherly advice had been yesterday. Soon a soft snow will be falling outside the courthouse, swirling around the statue of Thurgood Marshall, dusting the pavement on Pratt and Lombard streets.
Take a look at the mercury, it's forty below. No use for a man to be dragging his feathers around in the snow. He's messed around with the big guys, and singed his wings....
Upstairs, in Jonathan Luna's quiet office, his eyeglasses, his cell phone, his laptop, his photographs, soon will be caged behind a delayed police line. The paper trail leading out of his office, leading down to the courtroom below, admitted into evidence, flies home to roost.
Last night had been a night of wild mystery, and a sudden fall to earth. Today will be a day of mourning and tears.
Maybe now he'll fly back home, that Baltimore oriole.
posted 12-5-13
Related:WHTM-TV Midstate Mysteries: The Death of federal prosecutor Jonathan Luna
A video biography of Jonathan Luna
To learn more visit the Luna page
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