Buju Banton Is One Charge Away From Emancipation Thanks to New Timeshttp://www.miaminewtimes.com/2013-07-04/news/buju-banton-gun-charge-thrown-out/Based on New Times' reporting, a federal judge in Tampa last week tossed out one of two convictions that sent reggae giant Buju Banton to prison in 2011. The decision — which hinged on juror misconduct dug up by the newspaper — is just the latest plot twist since the Grammy Award winner was rounded up in a government drug sting four years ago. It also opens the way for an appeal.
The news was bittersweet for the 39-year-old star and his camp. "He was disappointed that he wasn't granted a retrial on all counts," Banton's attorney, Imhotep Alkebu-lan, tells New Times. "He's still on the hook for ten years.
Banton — born Mark Anthony Myrie — was one of the most important voices to come out of Jamaica since Bob Marley. He was repeatedly nominated for Grammy Awards and gained international infamy as a homophobe after releasing the song "Boom Bye Bye," which was allegedly about murdering gay men. He later renounced hate speech.
His career was cut short December 8, 2009, when an acquaintance delivered him to a Sarasota warehouse hot-wired for government surveillance. Once inside, the singer stood by while two men discussed the sale of cocaine and examined 20 kilos of the narcotic. Two days later, Banton and two other men were arrested and charged with conspiracy to possess with the intent to distribute cocaine and possession of a firearm in furtherance of a drug-trafficking offense.
As a February 2012 New Times feature, "Buju Behind Bars," showed, Banton was no kingpin. He had fallen under the sway of a sweet-talking government snitch named Alexander "Junior" Johnson. Busted for smuggling 700 kilos of coke into the United States in the 1990s, the Colombian native reinvented himself as confidential informant who set up criminals using a government check as bait. By the time he crossed paths with Buju, he'd banked around $3.5 million from snitching. The recording artist maintains he never intended to make a drug buy.
"Time after time for six months, this informant, who was just trying to make a buck, kept pushing and pushing and wouldn't take no for an answer," says David Oscar Markus, an attorney who previously represented Banton. "That day, Buju thought he was going to a party, and [the snitch] takes him to a warehouse with drugs."
That argument was enough to hang the jury at Banton's first trial in 2010. In a February 2011 retrial, the jury emerged after three days of deliberations to find the singer guilty on three of four charges.
At the subsequent sentencing hearing, the gun charge came in for particular scrutiny. It carried an automatic five-year sentence, but lawyers pointed out Banton has never possessed the Luger semiautomatic handgun that was found on James Mack, the man rounded up in the same sting after driving to Florida from Atlanta with $135,000 for cocaine in his car. In fact, the two men had never met.
Weighing those circumstances, Judge James Moody tossed out the allegation but handed Banton ten years for the drug charges. The government appealed, and a panel of judges in Atlanta stapled five years back onto Banton's time. The higher court cited the Pinkerton liability rule, a provision that makes a criminal responsible for offenses committed by a co-conspirator.
After the February 2012 feature story, New Times published 19 pieces tracking Banton's attempts to appeal his conviction. But it was an October 18, 2012 article — "Buju Banton Juror May Have Violated Court Orders: Grounds for a Mistrial" — that proved to be a game changer. The piece featured an exclusive interview with Terri Wright, the former foreperson who admitted to studying details of the proceedings on her computer during the trial — a clear violation of the rules. "I would get in the car, just write my notes down so I could remember, and I would come home and do the research," she told the paper.
Specifically, Wright said she looked into the Pinkerton rule. It was used by prosecutors to tie Banton to Mack's handgun.
After the piece appeared, Banton's legal team filed a motion for a new trial based on jury misconduct. At a hearing over the motion, Wright claimed New Times had misquoted her, alleging the research came after the trial.
In late November, Chris Sweeney, the writer who covered Banton's case, left the paper. In early December, the defense subpoenaed his notes and recordings. This created an awkward ethical situation: A journalist was being asked to hand over his work.
"Clearly from the perspective of the ethics in journalism, you'll go to jail before you turn over your notes. But there are exceptions to those rules, and I think those exceptions are in this case," says Charles N. Davis, a professor at the University of Missouri's School of Journalism. "Here you have a woman who is essentially accusing him of a much worse journalism crime, which is effectively fabrication, or at least deception. If I were him, I would have done the exact same thing to clear my journalistic name."
Adds Sweeney: "I was not too pleased about getting subpoenaed. But I was pissed. I wasn't going to let Terri Wright lie and say that I fabricated quotes. It's not like I was protecting any sources, so I might as well [testify]."
On December 20, Sweeney testified in Tampa. He produced a recording of the interview he had made of their conversation with Wright's consent. The tape confirmed Wright's published quotes regarding research. When the juror took the stand and heard her words played back, she still continued to maintain the research had been done after the proceedings. Banton's attorneys also grilled her on her failure to acknowledge she had served on seven juries. She had even said she would like to be a professional juror.
To settle the issue, Moody ordered Wright to hand over her computer so an expert could comb the hardware for past searches. But a close inspection showed that the equipment Wright submitted to the court hadn't been used at all from May 2010 to June 2011 — a time span that stretched four months after the trial. Banton's defense argued that Wright had submitted a different hard drive to distance herself from charges of wrongdoing. The juror continued to claim she'd done nothing wrong.
Last week, Moody ignored Wright's explanations. He ordered the gun charge thrown out because of the juror's research. He also told the state to prepare a contempt charge against the former juror for deceiving the court about the hard drive. She could face a fine and six-month sentence if convicted.
But Moody also ruled against a defense motion to throw out the drug charges, potentially leaving Banton in jail for the remainder of his ten-year sentence.
According to Markus, now that law libraries, statutes, and case law are a Google search away from anyone, more court cases are hindered by rogue research. "These issues are coming up quite frequently," he explains. "Judges are put in a difficult position today, because every day, jurors are going home to do research."
Banton's legal team says the New Times article about the juror's work "without a doubt" is responsible for the latest development. "That was the basis for our motion for retrial," Alkebu-lan says.
Team Buju is now weighing its options. Moody's decision leaves the whole proceeding in an awkward — and ridiculous — middle ground. By rejecting the gun charge, the judge acknowledged Wright's misconduct tainted the proceedings — but if she tainted one count, how is it possible she didn't poison the whole process?
"I'm not sure you can put those things into separate boxes," Markus says. "Once a juror, especially the foreperson, is doing outside research, it really affects the whole trial. And I think it really applies here. The jury initially voted 10-2 not guilty on all counts. This woman really affected how the jury thought about the case."
That's why, when Banton's attorneys appeal Moody's decision to leave the drug charges in place, it is possible the higher court will clear the deck. The defendant has a 14-day window to appeal Moody's decision to leave the drug charges in place. The prosecution also has the option to retry Banton on the gun charge (the U.S. Attorney's Office declined to comment about the case for this article), although it's unlikely at this point. For the recording star, that means his hellish run through the criminal justice system might soon be over.
"This decision," Alkebu-lan says, "helps us tremendously."
