Courts - Utah Some think source's death hampers artifact cases Defendants expected to use Sixth Amendment to squelch taped evidence

By Patty Henetz

The Salt Lake Tribune

SALT LAKE CITY (AP) -- The death of the government's top witness in the Four Corners artifacts-trafficking investigation has forced prosecutors to re-evaluate how they will present thousands of hours of taped evidence he gathered during a two-year undercover operation.

Ted Gardiner, 52, shot himself March 1, just weeks before he was to testify at a trial for the first time in the cases he started building in 2008 for the FBI, the U.S. Bureau of Land Management and the U.S. attorney for Utah.

Government attorneys have affirmed that the felony prosecutions against the remaining 22 defendants, most of them Utahns, will continue. But legal experts say Gardiner's death gives defendants an opportunity to squelch the tapes under the Confrontation Clause of the Sixth Amendment, which guarantees the rights of the accused in criminal actions.

"The premise of the Sixth Amendment is, we have to subject the accuser to the crucible of cross-examination," explains Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers. "This really is a hot issue in the law right now."

Recent U.S. Supreme Court rulings, written by conservative Justice Antonin Scalia, have broadened defendants' rights by curtailing cross-examination exemptions.

Scalia notes that the right to confrontation dates to Roman times but was subverted in some notorious English prosecutions, including the 1603 trial of Sir Walter Raleigh, who was beheaded for treason after a witness lied to save his own skin but wasn't cross-examined.

During a March 8 court hearing held to set trial dates in the artifacts probe, Assistant U.S. Attorney Richard McKelvie told U.S. District Magistrate Judge Samuel Alba that "it ought to be obvious to anyone" that the covertly recorded evidence would remain at the center of the cases.

Weeks earlier, Blanding defendant Brandon Laws had filed a motion to toss the taped evidence. U.S. District Judge Ted Stewart is scheduled to hear arguments on that motion Thursday.

Indicted on two felony counts for alleged theft of tribal property and violation of the Archaeological Resources Protection Act, Laws argues Gardiner broke Utah law by conducting surveillance without his knowledge at the home of Blanding resident Joseph M. Smith in 2008.

Federal authorities responded that such surveillance is legal under Utah and federal law as long as one person is aware of the recording, and that the suspect had been caught in the act of committing a crime.

The Laws motion doesn't analyze the Sixth Amendment, but could touch on the tapes' authenticity, which shouldn't pose a problem for the prosecution, says University of Utah law professor Paul Cassell, a former federal judge.

Gardiner, identified as "the Source" in court papers, used a hidden audiovisual recorder to document transactions in which he bought and sold artifacts that court papers say were obtained illegally from public and tribal lands. He purchased more than 250 archaeological artifacts totaling $335,685 at the direction of the FBI. Court documents also say transactions were observed by other law-enforcement investigators.

"You have to bring in a witness with knowledge of the representation" to prove the evidence is fair -- and the other investigators could testify to that, Cassell says.

The defense will argue for the constitutional right to confront the accuser, he says. "I don't think that argument will ultimately fly. The video evidence speaks for itself."

Not having Gardiner testify "may take some of the drama out of the trial," Cassell says, "but I don't think, in the grand sweep of things, it's going to harm the government's case much."

Acting U.S. Attorney for Utah Carlie Christensen has said she anticipates more motions to suppress the recorded evidence -- and she's right, says Hart, who is not involved in the cases.

At the March 8 hearing, McKelvie told Alba that prosecutors never took sworn testimony from the paid confidential source, so there wouldn't have been grounds for cross-examination. But Hart says the tapes Gardiner made nevertheless are "testimonial" and therefore subject to cross-examination.

There used to be an exemption if the accuser-witness wasn't available to testify at trial, but the Supreme Court has held there still must have been a prior opportunity for cross-examination.

"Testimonial means someone is accusing another person of the crime. Certainly the contents of these recordings were to charge people with stealing artifacts," Hart says. "It's different when somebody is sworn. They promise to tell the truth. ... The cross-examination really becomes vital when a jury is involved. The jury really needs to see the witness on the stand to assess reliability."

But Gardiner is dead, so that can't happen, leaving forever unanswered the question of how his troubles might have affected his testimony.

The tapes aren't the prosecutors' only evidence, of course. Though search-warrant affidavits drew from the recorded evidence to show a judge probable cause to search suspects' property, the artifacts collected during those searches could be enough to yield convictions, Hart says.

Suggestions that the defendants are victims of entrapment probably won't go anywhere. Hart says attorneys would have to show that, without enticement, the defendants wouldn't have engaged in the transactions and committed crimes.

"If these people had purchased illegal artifacts before, I'm sure the government would argue they were already doing it," Hart says. "There would be no entrapment."

Published: Tue, Mar 23, 2010