It was Thursday morning,
minutes after Jerry Keenan had been found guilty by a
U.S. District Court jury of charges of lying to agents of
the FBI and ATF who'd been investigating last December's
Reno IRS bomb attempt. The jury was gone, the
courtroom cleared out, and Keenan, his wife and friends
were standing out in the fifth-floor hall of the Reno
Federal Building. They were listening to defense attorney
Ben Walker explain the different sentences the felony
conviction might bring the 53-year-old businessman. It
was not so bad, really, considering everything, said
Walker, because the jury had found Keenan not guilty on
the government's most serious charge, that of perjury
before the federal grand jury. And
if Keenan actually had to go to jail, it probably
wouldn't be for long, he said, adding that the eventual
sentence, after the just-scheduled August 9 pre-sentence
hearing, might turn out to be only be a fine or even just
probation. But
the diabetic owner of Gardnerville-Minden's Green Valley
Nursery Center was dejected, and -- as trial watchers had
learned was his deep-seated habit -- just blurted out
what was foremost in his mind. He "could take some
extra insulin and clear it all up," he said. At
that both his attractive fifty-ish red-headed wife,
Joanne, and attorney Walker turned again to the brighter
side of the result. "You're
self-employed, so you've still got your business, you've
still got your friends and they know what happened,"
said Walker. "It shouldn't affect your
business." "It
already has," said Keenan. But
his wife Joanne -- either greatly relieved that the more
serious federal charges had been rejected by the jury, or
simply to cheer up her husband, or both -- was
emphatically upbeat. When
the defense attorney said that what might end up
bothering Keenan most was that, as a convicted felon, the
lifelong hunter and fisherman might not be able to own a
firearm, Mrs. Keenan pointed out to her husband that he
hadn't gone hunting in five years anyway. "You'll
have to take up bridge," she joked. If
some on the defense side felt Keenan had dodged a bigger
legal bullet than he took, members of the Nevada office
of the U.S. Attorney's had even more reason to be
relieved. In
many ways the trial could easily have turned out a
high-profile public relations disaster for the federal
government. Instead, the prosecution got a conviction on
one subparagraph out of the eight listed under the
indictment's two counts. The
government had charged Jerry Keenan with lying to federal
agents in three instances and with lying to a federal
grand jury in five instances. But
even before the jury was given the case for deliberation,
federal Judge Howard McKibben had agreed with the defense
that four of the eight particulars should be stricken
from the indictment because the government had presented
no evidence to substantiate the charges. The
remaining charges at that point were two items under the
first count -- lying to a federal officer in the pursuit
of his duty -- and two items under the second count,
lying to a grand jury. But
when McKibben provided his instructions to the jurors,
the absence of several of the original charges confused
them. The jury sent a letter back to the judge, asking if
the remaining single statement in count 2 was the only
statement they were to consider. And the judge's
response, in effect, was yes. When
the jury did settle down to deliberate on the remaining
four particulars, they quickly found Keenan not guilty on
three of them. Most
probably the remaining question at that point, Walker
told Electric Nevada, was whether Keenan had tried
to deceive investigators when he told them that the
"Crazy Joe" they were seeking had come to his
nursery only once that he knew of. Walker
based that inference on the similarity the other charge
under the first count had to the remaining charge under
the second count. If jurors had felt Keenan was guilty on
the other first-count charge, said Walker, they would
have logically also found him guilty on the similar
charge under the second count. And since they didn't,
what remained was the question having to do with the
number of Bailie visits. The
question had first been asked on the night of December
19, 1995, FBI agent William Jonkey told the court. Jonkey
and federal Alcohol, Tobacco and Firearms agent Jim
Doreen had telephoned the Keenan household shortly before
midnight and told Mrs. Keenan they would be arriving
shortly. Mrs. Keenan then woke her husband, who goes to
bed at 8 p.m., in order to rise at 4:30 a.m. and getting
to the nursery an hour later. At the time he had been
asleep about four hours. When
the agents arrived, according to Jonkey, the Keenans
served them coffee, and the sleepy and tired Keenan
answered their questions, which had to do with a
"Joe Grosso" or a "Crazy Joe" --
names they had from a previous interview. While the
"Joe 
Grosso" line of inquiry would
eventually turn out to be a false lead, the "Crazy
Joe" line allegedly was not, and Keenan did give the
agents the names of three people who knew a good deal
more about the "Crazy Joe" character than did
he.
However,
ATF agent Doreen had not been satisfied by Keenan's
demeanor. Taking Jonkey outside onto the front porch he
had complained that in his view, Keenan was not being
forthcoming enough. The agents returned inside where
Doreen then cited to Keenan provisions of federal law
under which making false statements to federal agents
could lead to prosecution and imprisonment.
Jonkey
testified in court that no tape recording had been made
of the interview with Keenan and that he no longer had
his own notes on it. The notes, he said, had been given
to ATF agent Doreen, because the Bureau of Alcohol,
Tobacco and Firearms had been the lead agency in the
investigation.
Government
prosecutors did not put ATF agent Doreen on the stand,
notwithstanding the BATF lead role in the investigation,
and ATF officers and agents would not respond to
questions on the case, referring all questions to the
office of the U.S. Attorney for Nevada. Assistant U.S.
Attorney Thomas O'Connell, reached in Las Vegas by Electric
Nevada, would not answer questions on the decision
not to call agent Doreen. O'Connell said Department of
Justice rules and policies prohibited federal attorneys
talking to news media about anything outside what
actually took place in court.
Defense
counsel Walker argued to jurors that the fact that Keenan
had given useful information to the FBI and ATF agents
showed that his motive had been to help and that any
omissions in what he told them in the middle-of-the-night
interview would have been forgetfulness, rather than an
intention to deceive. And throughout the trial, Walker
was able to catch government witnesses, and even
Assistant U.S. Attorney Ron Rachow -- who argued part of
the case for the government -- in their own mistatements
of key facts and other memory lapses.
Walker
also argued before Judge McKibben that the question of
how many times "Crazy Joe" had been to Keenan's
nursery center was not actually germane to the central
issues at stake in the agents' visit.
But
McKibben's instructions to the jury would eventually
retain the point as one for the jury to decide.
Reached
Friday, attorney Walker said he thinks it probable that
the verdict will be appealed. He said he will also renew
an earlier motion for acquittal.
One
ground for the appeal, he said, could be that government
attorneys improperly used Keenan's Alford plea in a
Douglas County case six years ago.
While
Keenan had pled guilty to a misdemeanor, the asssistant
U.S. Attorneys incorrectly characterized the conviction
as something more serious: a gross
misdemeanor, said Walker.
And
while the nature of Alford pleas is to specifically allow
someone to continue to assert their innocence, he said,
the prosecution improperly argued to the jury that for
Keenan to continue to say he was innocent, though he pled
guilty, meant Keenan was "just willing to lie again
to a jury."
This
is the Alford plea phrasing, based on a U.S.Supreme Court
decision: "..That in pleading guilty to the above
referenced charge I am reserving my constitutional
privilege to continue to assert my innocence, and I am
pleading guilty for the sole purpose of avoiding the
possibility of conviction on the more serious charges
that are currently pending against me."
Walker
said Keenan's attorney at the time had told Keenan it
would have cost him an estimated $20,000 to defend
against the charges.
"It
was just a plea bargain to end the case, to avoid the
expense," said Walker, adding that the plea bargan
was so general, it didn't even tell who Keenan was
supposed to have assisted.
"I
think the prosecutor mistated the evidence to the
jury," leaving them to think, "now he's lying
when he claims he's innocent."
The
first time the government attorneys so mischaracterized
Keenan's Alford plea, said Walker, was during their
cross-examination of Keenan. And at that point the
defense counsel objected and the judge sustained his
objection.
But
later, in the government's final summation, said Walker,
"they did it again. I could have stood up and
objected, but often that just makes it into a high point,
emphasizing it. The other course is to keep quite and
just hope it didn't prejudice the jury." That was
the course he chose, he said.
"But
in a real close case like this -- and I think it was a
close case -- it may have been what made the
difference."