by Edgar J. Steele
The jury never heard even a hint about the single most important piece of evidence in the Government’s case in my defense at trial: proof that the government’s evidence, the two recordings, were phony. Without those recordings, the government’s case against me literally disappeared.
What’s that? You say that there must be something wrong? That I am failing to tell you everything? Nope. Ask anybody who was at that pre-trial hearing that took longer than my entire defense at trial. Judge Winmill ruled that I could not present any evidence disputing the authenticity of the audiotapes. Why?
Why? For two reasons, said the judge – one for each of the two forensic audiology experts we flew in from New York and New Mexico, respectively, for the hearing and the trial.
The first expert, Dennis Walsh, with over 20 years experience in handling and analyzing audio recordings for the New York City Police Department, who owns a company that does nothing but analyze recordings, was declared “not qualified” to render an opinion. Not qualified? Excuse me? Walsh was doing this before it was science! In a moment, I will give you Walsh’s conclusions; then you will see why the court and the government had to prevent his testimony at any cost.
My second expert, Dr. George Papcun (pronounced “Pap’-sun”), could not possibly be deemed unqualified, given the fact that he is the world’s leading expert in forensic audiology. Papcun literally invented the discipline’s terms and wrote the book “that others throughout the world rely upon.” Papcun couldn’t testify, said the judge, because he was irrelevant, because nobody had put the authenticity of the tapes into question. Yes, you heard that correctly, regardless of how ridiculous it sounds. And the judge said it right out loud, with a straight face. Why wasn’t the listing of Walsh and Papcun as experts with the court (and filing their written opinions that the recordings were false) enough to put the authenticity of the recordings “into question?” Why didn’t my husband-wife-privileged jailhouse call, in which I averred the “tapes” had to be false, enough to trigger the authenticity issue? For that matter, why wasn’t my “not guilty” plea enough? Why wasn’t my expert’s testimony for 1-½ days in a pretrial hearing “enough?” Incidentally the judge ruled that I had waived that privilege, so that the call became the source of yet another federal charge calling for 20 years in prison.
Then the judge said he might change his mind if a “party to the recordings” testified during the upcoming trial (now just 3 days away) that something had been deleted or added to them. B-b-but, Judge – that leaves only Larry Fairfax, the Idahun Hit Man, since I wasn’t really a “party” to them. So, Judge, you are saying that, if I waive my Constitutional right not to take the stand, I might somehow be able to dispute the recordings’ authenticity? Really? Of course, you know that a defendant always testifies last, if at all? You are forcing me to choose between my constitutional rights and a key witness? The key witness? I felt as though I had “gone through the looking glass” and now was subject to the tyranny of the Red Queen.
I don’t know if Judge Winmill knew that Dr. Papcun long ago had prepaid $48,000 (non-refundable) for his and his wife’s dream vacation of a lifetime to Tahiti, scheduled to depart just two days later. Dr. Papcun had offered to stay for the trial despite that vacation (that could not be rescheduled), if the judge ruled that he could testify and if we could put him on the stand early, out of order and ahead of the state’s case against me. But the judge said Papcun couldn’t testify, so off he flew to Tahiti.
When Yes Means No
I honestly don’t know if the judge knew Dr. Papcun’s vacation before the trial, but he sure knew about it during the second week of trial when he inexplicably reversed himself, saying Papcun (but not Walsh, of course) could testify at trial, provided he was in the courtroom at 8:30 am, two days later. The US Attorney knew about Papcun’s vacation in advance, because she was secretly requiring the jail to provide her recordings of all my calls from jail, even those made to lawyers, during which I discussed Papcun at length. Now it was too late to subpoena Papcun, but we could get him back on the next commercial flight if we hurried. He agreed to come back, but asked if there was any other way. We thought there was another way.
Yes, I know I promised to quote for you both experts’ written opinions, but a couple more incredible twists to the Papcun saga yet remain to be told. My lawyer informed the judge that Dr. Papcun was on the other side of the world and, though there just barely was enough time to get him back to Boise by commercial jet by the Judge’s deadline and though he was willing to come, could we simply have him testify by videophone satellite uplink, over the internet? “Yes,” said the judge. However, the very next morning and with only 24 hours to go, the judge acceded to the US Attorney’s renewed demand that Papcun testify only in person. Why? So that she could “more effectively cross-examine” Dr. Papcun! Keep in mind that this selfsame US Attorney had cross-examined both Dr. Papcun and Mr. Walsh in person and on the same witness stand, just 3 days before trial, for 1-½ days!
This is the same judge who ruled that I had no constitutional right to confront witnesses against me at trial, allowing the videotaped deposition of Tatiyana Loganova to be played for the jury.
The smell arising from this sordid little interlude just gets stronger, doesn’t it? Well, hold on, because it gets worse.
The Stench of Real Injustice
With less than 24 hours to go, the only way we now could get Papcun to Boise by 8:30 am the next morning would be by charter jet.
We found one, incredibly enough, located in a place where it actually could make it to Tahiti, pick up Dr. Papcun and fly him to Boise just prior to the Judge’s deadline… for $180,000! Cash in advance, of course. My friends sucked it up and calculated that, together, they could just barely pull together $180,000 that same morning. When they called the jet charter company back, however, less than one hour after getting the all-clear signal from it, the tension on the phone line was palpable. No, they didn’t want to rent us the jet, after all. No, they had no idea who could or would, on such short notice. “Have a nice day.” With that, my hopes for an acquittal disappeared.
We couldn’t challenge the recordings, so the jury concluded they were real, of course. The only thing my lawyer was allowed to say during closing argument was that there was a “problem with the recordings,” and that only because my wife and daughter had sworn on the stand they were phony and that it didn’t even sound like me in many places.
Despite the fact that my wife and daughter literally are the world’s leading experts on how I sound and, though their testimony went unrefuted, the government convinced the jury that I really had said all those terrible things.
Now, let’s see what Dr. Papcun said in his pretrial written report: “Both recordings contain numerous electronic signatures… such as would be caused by dubbing… and/or editing…” “Both recordings contain gaps…” “Both recordings are of poor quality… with the recording volume at a very low level, which would conceal irregularities and defects in the recordings.” “There are discrepancies in the relative volumes of the speakers.” On one of the tapes, “there appears an extraneous voice.” “… I conclude, within a reasonable degree of scientific probability that the recordings… are unreliable.” “With commonly available methods, it is possible to remove material, insert material and alter the meaning of conversations.”
Dr. Papcun also said that “electronic transients may be caused by various events such as the following: turning equipment on and off, changing components, connecting or disconnecting components, microphone malfunctions, other equipment malfunctions (and/or) attempts at splicing or otherwise editing or modifying recordings.” Every single one of the foregoing “events” was ruled out by uncontroverted evidence presented by the government, all except the last item, that is: “attempts at splicing or otherwise editing or modifying recordings.”
Remember my other expert, Dennis Walsh? He adopted all of Dr. Papcun’s conclusions and went even further. Walsh’s written opinion also said: “I conclude, with a reasonable degree of scientific probability that the recordings contain different speakers purported to be that of Edgar Steele.” (emphasis added)
In direct testimony on the witness stand during the 1-½ day pretrial hearing on audiology experts, Mr. Walsh went still further and stated his certainty that the tapes had been “manufactured” and were wholly unreliable.
Next: Here Come De Fix