IS THIS THE TRUTH?
• GLENN CROSS-EXAMINES JOHNNY DING ABOUT HIS UNSAVORY PAST.
• JOHNNY DING EXPLAINS HIS AGREEMENTS WITH THE STATE AND FEDERAL COURTS.
TIME: FRIDAY. APRIL 24. 1998; 3:30 P.M.
PLACE: JUDGE FRIED’S COURTROOM
Glenn takes a quick glance at his notes while Johnny Ding waits passively in the witness box. Facing the jury rather than the witness, he asks the following questions:
“In 1994, you shot and killed somebody.”
“Correct.”
“With a gun?”
“Correct.”
“The bullet hit his head?”
“It was such confusion. We shot, we fired, and all I know, he is dead. I have been told by the law officers that he’s dead.”
“You beat people?”
“I did.”
“With metal bars?”
“Correct.”
“You extorted store owners?”
“Correct.”
“You threatened them?”
“Yes.”
“And it was your goal to keep these people in fear, isn’t that correct?”
“Right.”
“So that your gang could thrive?”
“Yes.”
“And when you killed this man, it advanced your position in the gang.” Pause. “Correct?”
“That was an order from above.”
“That compliance advanced your position in the gang?”
“That’s correct.”
Glenn is deadpan. It’s as if he was asking: “You bought the tomatoes?… Right?… And carrots?… Correct?…”
Suddenly Glenn spins around and faces the witness. “You approached another man and punched him? You pulled a knife on him and demanded $1,800.” He is angry. He needs to be angry. It is appropriate to be angry. “This person is screwing my client,” he later explains. “A jury would not have the energy to acquit Joe if I wasn’t outraged at his accusers.”
Glenn becomes a bombardier, diving in for the kill. “The man ran away.… You ran after him.… You grabbed him and threatened to kill him if he didn’t pay the money.”
“That didn’t happen,” Johnny screams back.
Louder and louder. “And you threatened him—”
“… We had an argument. It was a back-and-forth argument. It was a dispute between brothers.”
Glenn turns back to the jury and serenely asks, “So it’s a lie when they charged you for that particular crime?”
“When that charge was brought against me, it was a dispute between brothers. The brother didn’t come back to accuse me.” Johnny fidgets, but only a little.
“You threatened to cut off his fingers in that case, didn’t you?” Glenn says, reminding the jury that someone bragged about cutting off Mr. Li’s finger. (Earlier in the trial, Mr. Wang said that someone whom he could not identify told him that the second victim’s finger had been cut off. “His finger—one of his fingers had already been cut off. And he waved it in front of me.” Leemie’s theory is that the unidentified person was Joe Chen. Glenn believes it was Johnny Ding.)
“That was not what I said. I threatened him on the phone. I said, ‘If you don’t give the money, then you will be beaten up. You will be hit in the leg.’”
Glenn asks about even more crimes: three other kidnappings, a few beatings, and a robbery at Jane Ding’s uncle’s massage parlor.
Glenn tilts his head; his eyes widen. “You have committed all these crimes, and all of a sudden, you want to come clean? Is that your testimony?”
Johnny replies, “Someone who committed crimes, someone who did wrong, knows it very well in their heart. When they do something wrong in the past, they can’t even sleep well at night. It is like jail, jail within your mind. When I got arrested by the police, I thought back to all the pain that I caused my victims. Because for the sake of money, I did these things to hurt—”
“But now?” Glenn interrupts. He wants the jury to hear this.
“I feel that in my heart—”
The defense lawyer breaks in. “Mr. Johnny Ding, this transformation that you are talking about occurred after you got arrested and were held in jail?”
“When I think back, I realize I hurt these people—”
Glenn begins the sentence, “You are facing—”
“I have to face the truth of what I did,” the witness inserts.
“—You are facing a life sentence in a federal prison. Correct?”
“Myself, whatever punishment they are going to impose on me—I did so many bad things to other people—I have to tell all the truth. I have to come clean.” He rocks back and forth. “Whatever time is left after prison, I will have a second chance. Start fresh. It doesn’t matter to me anymore now. Today I’m here, I’m here to take the stand because it’s actually—I’m trying to rescue my own brother [Joe Chen] not to do any more crime to any other innocent people. If you harm innocent people, you harm yourself, too.”
The witness calms down and looks directly at the jurors and says, “If you help him escape from punishment, he will go do more harm to other innocent people.”
Glenn allows the oration because he does not think the jury believes this witness. But just to be certain, he creates a trap for the newly virtuous Johnny Ding. Like a spider out to catch a fly, Glenn spins a web of questions. “And you’re being very honest with the government, correct?” he asks simply.
“Of course. I have to tell the truth,” says the unsuspecting witness.
“That’s exactly the right thing to do. Does that make your heart feel better?” Glenn asks. His voice is soft, luring his prey deeper into his trap.
“I feel more calm now. It’s not that I want revenge, I just want to make that clear, whatever they did.…”
Leemie sees what’s happening and objects. Judge Fried overrules her.
JUDGE FRIED EXPLAINS FEDERAL AND STATE SENTENCING GUIDELINES:
Johnny Ding’s cases are in two different jurisdictions—federal and state. The federal and state courts each operate under sentencing guidelines. Sentencing is different in every state in the country, and then again it is different from the federal courts.
I. Federal guidelines state that a cooperation agreement permits the United States attorney (the federal prosecutor) great discretion. If the prosecutor believes that cooperation is substantial, then the cooperator will receive a 5.K.1. letter [5.K. 1. simply refers to section 5, paragraph K, subdivision 1 of the relevant statute].
A 5.K. 1. letter means that the federal judge is no longer bound by sentencing guidelines. The judge’s sentence can even be no time in prison.
Johnny Ding doesn’t have the 5.K. 1. yet. He is hoping to get it. It is entirely up to the federal judge to sentence him to anywhere from zero to life in prison.
II. Tying into this is Johnny Ding’s state agreement. A New York State judge cannot sentence a cooperator below the minimum demand of the law, even if his information is the most valuable evidence for law enforcement. Johnny Ding pleaded guilty to two counts of kidnapping in the second degree. Under the required state sentencing laws this crime has a mandatory minimum of two to six years, maximum eight and a third to twenty-five years.
If Johnny Ding ends up with more time from the federal court than he gets from the state court, the judge in the state can run his sentence concurrently [simultaneously]. If, on the other hand, he is given less time from the federal court, he will serve more years from the state court, with either a concurrent or a consecutive [one after the other] sentence.
Glenn adds a new strand to the web. “You are saying you got $3,000 for this kidnapping?” No response. Glenn asks, “Correct?” Still no response.
“Correct?” asks Glenn, louder.
“Correct,” the witness whispers.
“Is this difficult for you?” the defense attorney asks.
“Yes, I received $3,000,” he says, his voice strong.
Glenn moves to Johnny’s federal agreement. “You spoke to the federal prosecutor. Is that right?”
Johnny repeats, “He told me if I tell the truth he will not bring charges against me. But I have to tell the truth. I told the truth.”
Glenn springs his trap. “But you told the assistant U.S. attorney that you didn’t get any money from this kidnapping. Correct?”
“Correct,” Johnny admits. He lied.
Johnny tries hard to explain. “I only told him this case is in the state court. He said if it’s in the state court, okay.”
Glenn leans back. One trap in, now on to the next: “You’re very aware of the difference between federal and state court, correct?”
“Yeah, of course. Case here and over there. It’s different.”
“You know you can get any sentence by the judge in the federal court?”
“I will ask the judge if they give me another chance, I will start to begin a fresh person and new person. If they don’t give me a chance, I will be in jail my whole life. I can’t think of this thing, it’s not up to me.”
“For killing somebody…” Glenn looks over toward the jurors while Johnny answers.
“Right.”
“… You’re going to get a tremendous amount of time, or you’re going to get a tremendous amount of time taken off your sentence for your cooperation.”
Over the prosecutor’s objection, he answers, “That’s right.”
Glenn moves on to the state sentencing for this crime, the double kidnapping. Before Johnny pleaded guilty, he was facing fifty years to life in prison if the judge sentenced him consecutively for the two kidnappings. But he worked out a deal with the prosecutor’s office that would reduce his time to ten to thirty years in prison.
Johnny says, “That’s up to the judge. I cannot make a decision for him.” What happens is Leemie, the assistant district attorney, makes a recommendation to the judge about the length of time this witness should serve. The judge makes the final decision.
This is a dramatic place for the defense to stop for the day. So many crimes, and a chance for a lighter sentence, as low as ten years—strong motive indeed to put the blame on someone else. There are no further questions and the jury is dismissed. The witness is escorted out of the courtroom by three armed police officers.
Judge Fried says to Glenn, “I congratulate you on being able to effectively cross-examine the witness in fifteen minutes.
“Have a nice weekend.”
TIME: MONDAY. APRIL 27. 1998; 9:00 A.M.
PLACE: JUDGE FRIED’S COURTROOM
Just before court is in session, Glenn leans over to the prosecutor’s table and sweetly asks, “Leemie, did you put a plant in jail with Joe Chen over the weekend?” Since it is not illegal to put an informant in a cell with a defendant, Leemie might admit to it. Glenn wants to see Leemie’s reaction.
“No!” she says.
“You know what I mean by a plant?” he needles her.
“I know. I know. I didn’t do that.”
In spite of last Friday’s strong cross-examination, Glenn says that he feels like a beleaguered warrior. He worked on the case all weekend long. His two small children and his wife, who says she is ready to kill him, all had colds. Glenn was no help at all. At this point in time only the trial matters. Glenn says, “I can’t worry about my family. I can’t worry about anything other than my client. This is a very aggressive prosecution. Leemie seems to have covered every base.”
“Coming in!” shouts a guard as he leads Joe Chen into the courtroom.
The jurors are present and waiting outside the courtroom. Joe Chen’s handcuffs are removed, and the guard stands behind him. “Jury entering!” shouts another guard.
Johnny Ding enters the witness box, and Judge Fried reminds him that he is still under oath.
Glenn quickly moves on to another motive for Johnny’s accusation against Joe Chen. This one has to do with the defendant’s brother, Sonny.
Remember, Johnny Ding was one of the snake heads who smuggled Sonny Chen to America. But after he arrived, the Chen family back in China could not afford to pay all of the smuggling fees. Joe Chen asked Johnny Ding to help his brother.
Johnny explains, “I made phone calls. I spoke to snake heads in Washington to see if he could be released with a $5,000 guarantee.” As a favor to Johnny, the Washington snake heads lowered the fee. But the Chen family was still unable to pay. Johnny Ding vouched for him and Sonny was released. Another favor.
Some time later, Sonny Chen was kidnapped. Instead of calling Johnny Ding, Joe Chen reported it to the police. When Johnny heard that, he felt betrayed.
At that time there was a birthday party for Johnny at a Chinese restaurant. Joe Chen showed up and the two got into an argument. Joe Chen hit him.
Poor Johnny. He goes out of his way to help a friend and what did he get for it? A betrayal and a punch in the nose. And on his birthday yet. According to Glenn, an easy revenge would be fingering Joe Chen in this kidnapping.
Glenn moves on to this witness’s behavior after his arrest. Johnny says, “When I first got arrested, I was trying to protect myself. I tried to lessen my participation. But after I started cooperation, I told them the full truth.” He takes a sip of water from a plastic cup. “They asked if I knew Jane Ding,” he tells the jury. “As soon as they asked me that name, I knew I couldn’t get away with it. They also asked me about Sonny Chen and about Cow Eyes.”
Johnny signed a statement confessing that he took part in the kidnapping. But he never mentioned beating the victims. As a matter of fact, he blamed the beatings on the other people. “I was trying to avoid problems for myself,” he says. Leemie takes notes.
After he kidnapped the second victim, Johnny moved into the apartment on Rivington Street with the victims. But he lied again. He told the police that he only had a few drinks there and then left. “I was very nervous at the time,” Johnny explains. “I was scared. I didn’t know what answers I should give. I gave them the names of everyone who participated. I gave them the truth about that.”
The defense has no further questions.
* * *
Leemie heads straight to the witness. “Just to clarify, Mr. Ding, when you were questioned by the police, is it your testimony that you named all the participants in the crime, including the defendant?”
“Correct.”
“Okay. But you minimized your own behavior because you were protecting yourself at that time?”
“Yes.”
“Was there any talk about a deal at that time?”
“No. No.”
“I have no further questions.”
The judge asks if there are further questions from the defense.
“No.”
The judge says, “Mr. Ding, you are excused. Thank you.” Johnny Ding leaves the witness stand and returns to federal prison to await his fate.
Glenn leans back in his seat, one hand resting comfortably on Joe Chen’s shoulder. He is feeling confident now that the jury could not possibly believe Johnny Ding.