Jack Doppelt
[A version of this article was published as The Trial of the Century That Wasn't in the ABA Journal, Jan. 1993]
The parents of Army Private James W. Markwell stood first in a long line of people waiting to fill the ornate central courtroom on Friday afternoon, last July 10, for the sentencing of former Panamanian
dictator Manuel Noriega.
Their son was one of the 23 American soldiers to die when the United States invaded Panama in Dec. 1989 to capture Noriega and bring him back to stand trial for drug trafficking. They had come at their own expense from Cincinnati to the Southern District of Florida in Miami because they had been unable to find much news coverage of the seven-month-long trial on "radio, TV, or in any of the papers or magazines we read."
The sentencing made the front pages and the evening news, as did Noriega's conviction three months earlier and the start of trial in Sept.1991, But in between, the testimony of 78 witnesses, the 1,300 filed documents, the more than 100 days of proceedings, got lost in the shuffle of other news. Earth-shattering news such as the disintegration of the Soviet Union, as well as titillating news such as the William Kennedy Smith and Mike Tyson celebrity sex trials.
On the eve of Noriega's trial, the front page of the Washington Post described preparations for "what is believed to be the most sensitive and complex drug trial in U.S. history." ABC's ''World News Tonight" aired a segment in which Noriega's lead defense attorney, Frank Rubino, told correspondent Mark Potter that juror questionnaires revealed such heightened sentiments against Noriega as "they ought to send him back to Panama and hang him."
"The pre-trial coverage, particularly the
prejudicial pre-trial publicity, was as bad as I' ve ever seen," recalled Neal Sonnett, a Miami defense attorney who withdrew as one of Noriega' s lawyers prior to the trial.
Prosecutors were playing the case close to the vest, abiding by the strict office policy to not comment on the impending trial. "I was too busy even to notice the attention the trial was getting," said Assistant U.S. Attornev Patrick Sullivan. who led the prosecution team of Myles Malman and Guy Lewis.
From- the perspective of the 39 news organizations that obtained press credentials from the U.S. Marshal's office in Miami and the dozens of others that sent reporters to cover the trial's opening, the trial held forth the promise of a guided tour through the back rooms of U.S. foreign policy and into the file drawers of international corruption.
Even more notable than the unprecedented trial of the leader of a sovereign nation, the New York Times reported on the eve of trial, "is the promise that it will shed light on some of the most controversial and embarrassing episodes of American foreign policy over the last decade, ranging from the arming of the Nicaraguan Contras to the conduct of the war on drugs."
But by the time Noriega was sentenced to 40 years in prison, media critics were accusing the American news establishment of everything from breaking "new ground in dishonesty'' by keeping the trial low-profile to having a "childlike attention span" born of the TV age. At the least , the public and the news media that serve it apparently had turned down an open invitation to delve into the recesses of international corruption at the highest levels.
Coverage of the trial fell off so dramatically that news organizations had their official press credentials revoked. Only the wire services, Panamanian news organizations, the New York Times, Miami Herald, Fort Lauderdale Sun-Sentinel and National Public Radio kept reporters there gavel to gavel.
The networks, the national news magazines and the non-Spanish international press corps paid only fleeting attention to the case. The Wall Street Journal coverage was virtually nonexistent after the first month of trial. Even CNN, which had followed American troops into Panama in Dec. 1989 and aired unauthorized tapes of Noriega's pri son conversations a year later, withdrew its reporter and camera crew after a few weeks and let a field producer monitor the case.
Most tellingly, local newspapers and broadcast outlets, like the ones the parents of Private Markwell were checking, took a pass on the dailv stories the wire services carried. "Except for the Miami Herald, I don't think there was a page-one story even in the south Florida papers until the verdict came in," said Jane Sutton, who covered the trial for United Press International.
How could a news event go from being billed as the "Drug Trial of the Century" to being a journalistic afterthought? What went wrong? The answer,
quite simply, is everything.
Tightened news media budgets. National security. The ban on cameras in the federal courts. The need to have the testimony, much of it in Spanish, translated. The unfulfilled teases that the likes of Oliver North, Fidel Castro and Noriega himself would testify. Medical delays, including six weeks after the judge's emergency heart surgery. The sheer length of the trial. The painstaking tedium of it all.
"It\'s Court TV's luck that cameras are barred from the trial of Manuel Noriega," wrote Cathy Booth in The New Republic. "[T]he trial of America's only prisoner of war has been, alas, a ratings bore. The judge , jury, and press have all been spied snoozing." As Time's Miami bureau chief, she covered the trial regularly, but her own magazine carried her byline only once over the course of the trial.
"We didn't know it then. but by the time the trial opened, many of the fascinations of the case were already history," said Associated Press reporter Richard Cole, who covered the trial religiously for the wire service.
In 20 months of pre-trial motions. U.S. District Judge William Hoeveler had disposed of most of the knottier legal questions, confronted issues of international law, and
effectively sapped the trial of much of its promised political intrigue.
When the trial began, it had already been resolved that Noriega was not Panama's head of state for the purposes of invoking sovereign immunity; that his prisoner of war claim wouldn't keep the trial from going forward; that his assets could be frozen, revealed for the world to see and then partially released to pay defense costs; that neither the unceremonious seizure of Noriega from Panama nor the unauthorized taping of his attorney-client conversations while in jail was sufficient to dismiss the case against him; and that Hoeveler was not going to allow a case "fraught with political
overtones" to be tried as a political sideshow.
"It became clear in pre-trial decisions that certain areas would be off-limits." said John Dinges of National Public Radio, the author of a book on Noriega and the U.S. invasion of Panama. "I got the nagging feeling I wasn't going to find out much new."
The Classified Information Procedures
Act saw to that. CIPA was enacted in 1980 to keep a lid on classified information relating to a trial. Classified information under CIPA means anything the Justice Department and intelligence agencies decide is better left undisclosed for reasons of national security or foreign relations.
"We always have the option to decide not to disclose something," noted Noriega prosecutor Sullivan, "if we're prepared to suffer the consequences." The consequences can be as dramatic as having the charges dismissed.
In the Noriega case, it meant that unless Hoeveler decided that information was directly relevant to Noriega's defense against drug-trafficking charges, embarrassing information about U.S. foreign policy would not get out. It also meant that information the defense picked up from Noriega , even if not contained in U.S. documents turned over to the defense, would not get out during trial, on the court house steps or in any other way. The defense undenwent security clearance and was bound by a protective order issued by Hoeveler in March 1990 - 18 months before trial.
"It never happened in this case that the judge ordered classi fied information to be admitted and the government refused for security reasons," defense attorney Rubino said. Rubino, Sullivan and Hoeveler all estimate that six or eight times the government chose to submit "substitutions" or cleansed versions of classified documents, as evidence at trial. The case docket reveals that another
25 classified documents were redacted and included in the public case file.
What came out even in sanitized form was only the tip of an iceberg of what did not. The case docket logs another 98 instances in which documents were sealed and kept in a vault instaled in Hoeveler's chambers specifically to accommodate the Noriega papers.
"The tip of an iceberg depends, of course, on the size of the iceberg itself," said lead prosecutor Sullivan, "and the defense was asking for a huge iceberg."
Though Hoeveler estimated that the media "got 97 percent of the information," reporters complained regularly to one an other about the CIPA censorship that left them without on-the-record sources, kept them out of in-camera hearings, and meant weeks of waiting to receive sidebar transcripts that were first cleared in Washington, D.C.
Reading between the classified lines, only reporters who stuck with the trial were able to make educated guesses of what they were not getting. But even going into the trial, reporters and their news organiza tions were already getting a sense of the diminished opportunity to use the Noriega trial as a looking glass into issues larger than the drug dealing guilt or innocence of a dictator whom Los Angeles Times reporter Robert Jackson had called "yesterday's villain."
If the news media were prepared to treat Noriega as a has-been, the prosecution did little to dissuade them. In opening statements, Assistant U.S. Attorney Sullivan referred to Noriega as "just another crooked
cop." As luck would have it, even that day's coverage was buried. The same day, Oliver North's conviction was overturned.
The news coverage picked up on what appeared to be a prosecution strategy to play down the trial. The full context for "just another crooked cop," which was a borrowed quote from drug kingpin Carlos Lehder, who would later testify for the prosecution, was to mark Noriega as just one of hundreds of crooked cops bought off by the drug cartel.
The Chicago Tribune, which would soon pull its reporter from the trial, pointed to the prosecution's methodical and dispassionate style and concluded, "[f]or those who expected a dramatic debut to a trial that has been advertised as a real life spy thriller, Monday's show was a disappointment."
The news media 's disappointment would only intensify in the second week of trial. Hints were dropped with reporters of American complicity in guns-for-drugs flights as a means of aiding the Nicaraguan Contras. The bombshell would come out during defense cross-examination of Noriega 's former personal pilot Floyd Carlton, they were told. But it never did.
When defense attomey Frank Rubino asked Carlton if he ever flew weapons at Noriega's instruction for Oliver North, the prosecution object ed and Hoeveler ordered Carlton not to respond. Some of the media quoted Hoeveler cautioning Rubino
to "just stay away from it," though none bothered to explain the judge's ruling. Others, particularly the broadcast media, ignored the exchange.
That ruling, and others Hoeveler made throughout the litigation, on the relevance of politically sensi tive information to the specific drug charges against Noriega effectively turned the news media into "Peeping Toms."
"From that point on," recalled the AP's Richard Cole, "those of us who stuck with the trial were finding out things by accident or through peepholes in the evidence."
Peter Eisner of Newsday believes the prosecution intended all along to keep the trial focus narrowly on drugs and off the larger context of official U.S. embarrassments.
They wanted to limit the media circus to one ring from three rings," said Eisner, who later in the trial would break a story on Operation Negocios, an undercover cooperative arrangement between Noriega and the Drug Enforcement Administration that prosecutors knew nothing about until they rested their case in Dec.1991.
"I think the prosecutors played down the high levels of government involvement purposely, both as trial strategy and as a way to manage media coverage," Noriega's ex-counsel Sonnett said. "And they were successful at it."
"Certainly it was the prosecution 's intention to not turn this into an Iran-Contragate sideshow," lead
prosecutor Sullivan conceded. "But we had no media strategy during the course of the case, I can assure you of that," he added.
Looking back over the trial, Hoeveler would say with some pride that "the trial was devoid of
politics." He attributes that not only to the prosecution and the narrow focus of the criminal case, but to the defense, which apparently abandoned its theory early in the trial that Noriega in fact permitted drug trafficking but did so at the behest of
U.S. officials.
That theory, known as the "public authority" defense, would have given the defense more latitude in exploring the supposed guns-for drugs operations. Instead, the defense chose to deny drug involvement, hoping to convince the jury that Noriega was a loyal ally ultimately set up by U.S. authorities after overextending his usefulness.
Rubino declined to sav why he chose not to pursue the "public authority" defense, but prosecutors offer two possibilities. "They dropped it probably because of the infamy that would attach to Noriega for him to admit he smuggled drugs," Sullivan suggested. His co-prosecutor Myles Malman, who left the U.S. Attorney's office after the trial for private practice in Philadelphia, was more blunt. "They dropped it because there was nothing."
The news media did not know of
the altered defense strategy until the defense put on its case in Feb. 1992, five months after the trial began.
By then, the Noriega trial had long since slipped off the media agenda. When the William Kennedy Smith trial drew some of the reporters to Palm Beach in December, those who were required to do double duty had an easy call. "The Noriega trial had already died for them," said Warren Richey, whose daily cover age for the Fort Lauderdale Sun Sentinel was periodically picked up by budget-conscious newspapers.
"The Wall Street Journal over estimated its own appetite for coverage of the trial," said reporter Christi Harlan, whom the Journal pulled from the trial after only three weeks and three stories.
David Lyons of the Miami Herald said his newspaper intended to be the paper of record for the trial, but cut back his coverage to once or twice a week as early as mid-October.
"I still feel it was one of the most
important cases to come into the federal courts this century," he said.
Even the appearance of drug kingpin Lehder in late November sparked coverage only for the duration of his testimony, which spanned three days. ABC's "Nightline'' and the international press corps revis ited the case to report that the drug cartel had decided to have Noriega killed but changed its mind in favor of paying him off. Instead, they
would pay Noriega for protection, drug-laundering connections, and the use of an airport and other landing strips.
Lender testified that the governments of Cuba, Nicaragua and Colombia, as well as Panama, had all been involved in shipping cocaine to the United States during the 1980s. In fact, so would have the American government if Lehder had agreed to allow his island in the Bahamas to be used as a base to ship weapons to the Contras. Instead, Lehder testified, the cartel backed the Contras themselves with $10 million.
The Los Angeles Times noted that Lehder's cooperation with American officials proves that "yesterday's villain can become today's hero in the criminal justice system," and compared Lehder's spellbinding testimony to Joseph Valachi's 1963 revelations of Mafia secrets during televised Senate hearings.
The New York Times reported that Lehder's testimony made it seem "as if the Medellin cartel had at one time or another worked hand-in glove with every government in the Western Hemisphere during the 1980s." Time, in its only trial coverage during the prosecution's case, wrote that Lehder's bizarre testi monv was a serious setback for the prosecutors because it made American officials appear as culpable for drug trafficking as Noriega.
The news media perked up long enough to seize on one of the few themes to emerge from the
Noriega trial - prosecutorial deal making. In exchange for Lehder's testimony, American officials agreed to relocate eight members of his family to the United States, recommend an accommodation on his life sentence without parole, and transfer him to a less harsh prison setting . The Washington Post quoted a Senate investigator as being astonished at the deals given to Lehder. "Clearly, Noriega was below him. Why are we giving him anything? Is this a propaganda trial?"
Warren Richey's story in the
Fort Lauderdale Sun-Sentinel expanded on the theme and was picked up by dozens of papers. It documented that 17 of the prosecution witnesses to that point "got deals." By the end, news accounts would put the number at 29. The Noriega deal making would loom as large as the verdict its elf in the trial post mortems, as Newsweek and others would ask "how far is too far" for federal authorities to go to get their man? Th e prosecution's answer was steadfast. "We didn't do anything out of the ordinary,'' said lead prosecutor Sullivan. "Though I can't think of another case that had more cooperating witnesses who got deals, it's not such a shockingly large number, especially considering that we were trying to prove conspiratorial activity over a long period of time ."
When Noriega addressed the packed courtroom at his sentencing 10 months after the trial began, he dropped crumbs for the media to follow. The two-hour statement mentioned U.S. involvement in a 1979 attempt to murder the Shah of Iran and t he 1981 air explosion that killed his predecessor Gen. Omar Torrijos. He accused a former head of the DEA of perjury and George Bush of instigating phony terrorist disturbances in the Panama Canal Zone when he was CIA director in the mid-'70s.
But the reporters who had re-convened for the grand finale left mumbling that Noriega still wasn't telling all they had come to the trial to hear. Some reported what he had said; the word that went out was it was "rambling." Prosecutors called it a "farce" and a "figment of his imagination." Defense attorneys mused that Noriega might have more to say in a forthcoming book.
"In some ways," said a frustrated Richard Cole of the AP, "I think we got more from Noriega at the end than we got throughout the whole trial."
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