BEFORE THE SECRET HEARING.
MR. HARRIS: All right. Well, we assert that it is. As far, Your Honor, as far, just ask the court to consider one thing. As far as the political ramifications of this, we have posited the possibility what if Schmoe was Winnick or some other high ranking official of Global Crossing tied in closely to the upper reaches of the Democratic party. What if, there's no way I can find that out because he's hiding behind a pseudonym. Some of the grammar I'll admit doesn't sound like and educated guy in the upper hierarchy but I don't know that. It could be.
And if it was and there was a lack of prosecution on this record I think we have made out our burden. If discovery shows that Schmoe was Winnick for example,
I mean the decision, it would be political dynamite to prosecute Winnick in this case. In addition to the strategic problems of having what that would do to this case. It's clear to me that a decision to prosecute... --
Transcript of 01.14.2003
A.K.A. Present -v- Future-Tense
MR. HARRIS: “I’ve got Gary Winnick under subpoena for Killercop. I’d like to tell Mr. Winnick he doesn’t have to appear. That took a lot of hoops to get the CEO under subpoena. Killercop wanted that.”
Judge: “I assumed that the government was going to put him on the stand, no?”
MR. HARRIS “I don’t think so. … So if this trial is going to be continued, one of the things that I’ll want to do is somehow withdraw that in a manner that we can get Mr. Winnick again, if and when.”
Judge: “I can arrange that.”
Judge: “There’s one other thing, before you ask your question, before I forget. There is a subpoena that recently has been served on Gary Winnick. I notice that Gary Winnick is not identified on the government’s witness list. And, I assume, correct me if I’m wrong, that the government has the ability to communicate with Mr. Winnick or with his lawyer, is that correct?”
Prosecutor: “I have the ability, Your Honor.”
Judge: “I want you to communicate to the lawyer or to Mr. Winnick or to both, that although he doesn’t have to respond to the subpoena on the date or under the terms that it may have contained, he remains responsible to respond on whatever date he is later notified.
I don’t want anybody to have to go through any protracted or new ground of efforts to subpoena him anew. So the subpoena remains outstanding, although the trial date has been continued. Please communicate that to Mr. Winnick and his lawyer.”
Transcript of 08.27.2003
A.K.A. Present -v- Past-Tense
Page 52, Lines 6-19
Prosecutor: “I just had a procedural point while Mr. Nicolaysen was still up here. In terms of the subpoenas, early on in the case, when Mr. Harris was representing Killercop, the court had ordered me [See 01.14.2003] to ensure that Mr. Gary Winnick, who had been subpoenaed by Mr. Harris, was made available. Mr. Nicolaysen had indicated to me that that availability was no longer necessary or required. So I have indicated that to Mr. Winnick’s attorney, and he is not under "my subpoena" anymore.
I just wanted to make that clear because that was kind of left hanging, and I don’t think there’s any written communication that would be in the file between myself and Mr. Nicolaysen on that point.”
Judge: “Thank you for clarifying.”
Trial, Day One
THE COURT: The two categories to Winnick are transparently overbroad: Any documents related to the defendant, sent or received, by or to him, from any source, person or agency, and it is a broad category of various kinds of documents and items that would be within that, and then contact information about people who he interacted with.
Those aspects of this subpoena, I would not authorize to be within the scope of the compulsory nature. People who get these subpoenas may or may not move to quash them. I don't know what they are going to do and I don't know these people. Putting aside these categories of documents, what kind of oral testimony from Winnick is part of your defense that you think he has to be sure to be here for?
KILLERCOP: Well, if the Court remembers, back when Mr. Harris was my counsel, the Court issued a standing order that Mr. Winnick be kept under subpoena --
THE COURT: Yes, I do.
KILLERCOP: -- and I wouldn’t have to go through what I'm now having to go through to compel his process.
THE COURT: I didn't quite issue that, my recollection is different. But I do recall -- and to shortcut this, some people -- some sides thought that Winnick might be a percipient witness. What would he be percipient to? percipient means that he experienced, that he did it.
KILLERCOP: Allegedly, Killercop said to him that -- the statement "Keep your dogs at bay. I'm now armed."
THE COURT: Let’s issue the subpoena to Winnick.
MR. REED: And we just wanted to get some guidance from the Court and perhaps also, obviously, from Killercop, with respect to these witnesses, because I have a feeling that, with respect to one, Mr. Gary Winnick, that witness previously had been anticipated to be called in the first trial. And the government, at that point, I believe, had some kind of agreement with the law firm that represented him that if the subpoena was just dropped off at that law firm -- Christensen, Miller -- that Christensen, Miller would accept service of that subpoena on Mr. Winnick and the investigators didn't have to track him down. They would be cooperative. And the government would see to it, also, that he got here.
Well, that's not what happened in the service of the subpoena recently to Christensen, Miller concerning Gary Winnick. And we perhaps need the government's assistance.
Perhaps there is still this agreement that they have that if he's attempted to be subpoenaed, they can help us get Gary Winnick. I didn't want to bring it to anybody's attention because the government doesn't know at this point that we want to call him, and I'm not sure what Killercop wants to do I that regard.
THE COURT: First of all, I am a hundred percent certain that the government, on the record, at some earlier proceeding -- I don't remember which one, Mr. Reed -- specifically said that they weren't going to be calling Mr. Winnick, and that any arrangements to involve the government or procure the government's assistance in serving Mr. Winnick would no longer be applicable. I don't really remember when that was said. We can explore it with them, if you want. I don't know what you are asking me to do exactly.
MR. REED: Well, can we make an update with respect to some other witnesses, too, and get to Mr. Winnick later?
MR. REED: But, Your Honor, the issue with respect to Mr. Winnick is this: I don't know if Killercop wants to let the government know at this point that he's going to call Mr. Winnick in his case. However, the government could be helpful in getting Mr. Winnick if we were to tell them now that we need him, because I think that they have some kind of relationship with that Christensen, Miller firm, in which they can call upon then to get Mr. Winnick. That's my point. I'm just advisory counsel. Whatever Killercop wants to do.
THE COURT: Here's what I'm inclined to do. I don't know that there is anything further I can do, having issued -- having authorized the issuance of the subpoena. You are welcome to speak with counsel for the government, Mr. Reed, on behalf of Killercop, to see whether they have an arrangement, or if they don't, whether they are willing to explore or attempt to create an arrangement by which, in some fashion, directly or indirectly, Winnick can be served. I don't think it's their obligation to. But I encourage you to question them as to the accuracy of my memory, that they specifically said, at some earlier time, that they weren't going to call him. They weren't going to insist on having him served. My memory is subject to repeated error, at this advanced stage of my decline, so I could be wrong.
Now, did you speak to the prosecutor about Winnick?
MR. REED: Yes, Your Honor.
THE COURT: Do you have a deal worked out?
MR. REED: No, we don't. They are trying to assist me in getting the name of the attorney who represents him who is a different attorney than Christensen, Miller. They are going to try to give that to me this afternoon.
THE COURT: Fine. We are adjourned until tomorrow. I have a lot of things I have to do.
KILLERCOP: Your Honor, just a couple of issues about that. I was informed last week that -- I've been unable to get a hold of Mr. Winnick -- he's gone, so he's out on my list -- as well as Ben Mascardo. I've also been told that his address is no longer valid and I've been unable to locate him.
THE COURT: In other words, neither of those subpoenas were served?
KILLERCOP: Yes, Your Honor, that's my knowledge. I'm really discouraged, to say the least, that Mr. Winnick is not going to be present at my trial. He was a key witness I needed for my defense, Your Honor.
See letter attached to ORDER by judge, dated Oct. 16, 2003, pages 1-3.
KILLERCOP: “I renew my right to call Gary Winnick under the Sixth Amendment. You indicated you didn’t want anyone to go through any protracted or new ground of efforts to subpoena him anew. “ Further, the next letter attached deals with the missing audio-tapes..., which were subpoenaed by the defense, turned over to the government after Harris was removed as counsel, and never turned over to killercop by previous counsel Nicolaysen, even though the judge made a ruling that they had been turned over to defendant prior to trial. Another fraud on the court.