Detroit Free Press from Detroit, Michigan • Page 43

SUNDAY, AUGUST 11, 1996 THE DETROIT NEWS 7D Sunday Special I'm a wonderful trial attorney, I love to work before a jury." Wittenberg was asked how he would cast his vote, if he were now on the Michigan Supreme Court, and a prisoner serving life told a story of such treatment by his attorney. "Me being the liberal I am," he said, Td say it merits some kind of evidentiary hearing." WALKER Continued from Page ID that investigates misconduct by lawyers all charge that Walker's prominent Detroit-area trial attorney, Howard J. Wittenberg, did less than his best defending Walker in order to hide the fact that Wittenberg had diverted $40,000 of Walker's money to his own use an allegation Wittenberg calls a "complete fabrication." And Wittenberg's strongest defender, author of a letter to authorities backing Wittenberg on every point, is the person who recommended him to Walker, former Detroit Lion Dick "Night Train" Lane Walker's biological father. In a letter from found cocaine 4.5 ounces in a plastic bag and 13.6 ounces in a dog-biscuit box as well as some marijuana and $96,000 in cash. Police began dealing with Lewis, intimating they would go easier on him if he turned over his suppliers.

Lewis, who had two convictions for burglary and another for receiving stolen property, began giving out names. The 18.1 ounces of cocaine police had found in his house, Lewis said, came from his main supplier, Johnathan Hill of Detroit Lewis said Hill had found a source of top-quality dope, a man Lewis had never met, but had heard Hill refer to as "Richard." Lewis' Washtenaw County customers loved Hill's top-quality cocaine, Lewis said, and since mid-1989 he had bought it weekly, in amounts as large was stunned. I remembered him visiting my mother when I was only about 3 or so, but I'd never seen him or heard from him in all the years since." Richard Walker reflecting on the day his mother told him that Dick "Night Train" Lane was his biological father prison beginning, "Hi, Daddy," Walker asked his father, "What could I have possibly done to you to make you write something this terrible against me, that could help keep me in prison for the rest of my life?" Lane gave his answer in an interview last week with The Detroit News. "You make your al. But Kaiser told The News he would not have written a letter "that favorable in tone," had he known Wittenberg never told his client the money had been returned, if indeed that is what occurred.

When Wittenberg asked him to write the letter, Kaiser said, he understood the issue to be a mere fee dispute. The second letter was from Dick "Night Train" Lane. "Mr. Wittenberg at no time took money without (my) knowledge and the allegation that he stole money from my son is ridiculous," the letter said. Lane told The News he has separated the issues of his son's criminal trial, and his son's dispute with Wittenberg.

He does not believe in his son's innocence, he said, but disagrees bitterly with the way he was convicted. "I testified at my son's trial, that if I knew he was dealin' dope, I'd go get my boys (Detroit police) and have him arrested that day," Lane said. "But here there was no dope, no eyewitnesses (other than Hill) I cant go along with that. "I told them all from the stand, Tail are wrong. You can't keep on puttin' these young black and Mexican kids in prison on this conspiracy.

You got to have the dope, you got to have some real But the fee dispute with Wittenberg, Lane said, is merely a ploy on Walker's part. "You know lawyers," Lane said. "If ifs 15 cents, or $15 million, they know how much you have, and that's how much they charge you. I know lawyers I've been through three divorces." Wittenberg has stopped practicing law in Michigan to pursue a business opportunity Howie's Bagel Bakery, on the Indiana University campus in Bloomington, Ind. He plans to "fight tooth and nail" against this "biggest fabrication in the world," he said in a telephone interview.

He took Walker's case, he said, "because he was family. "Night Train" Lane is my children's god-uncle. He's the most wonderful human being in the world." After hours of second-guessing himself about the case, he said, he has come up with only one thing he would have done differently: Request a trial by jury, rather than a bench trial. "When the trial was done," he said, "I went home and cried my eyes out. I bawled like a baby for days.

Walker got Wittenberg on the phone, and, by asking him leading questions, got Wittenberg to make statements that appear to admit that he kept a third of the first $120,000 returned without authorization, and did not tell Walker or his girlfriend about the return of the second $40,000 seized. Walker lost his appeal before the Michigan Court of Appeals; got a new, vigorous, appellate attorney Kenneth A. Birch of Lansing and now has a request to appeal pending before the Michigan Supreme Court. This plea contains new informatioa Walker packed up his tape recordings and sent them to the Attorney Grievance Commission, an agency that investigates complaints against lawyers, and has the power to levy punishments up to disbarment. The board receives 4,000 complaints a year, but only a fraction result in formal complaints 271 last year.

The complaint against Wittenberg charges him with failing to tell his client the $40,000 had been returned, and misappropriating it to his own use. The complaint also states the information that the money had been returned "was relevant to Mr. Walker's defense on the aiminal charges," and that Wittenberg "advised Mr. Walker against taking the stand to testify on his own behalf to avoid inquiry concerning the money." Birch hopes that the Grievance Commission's charge, coupled with transcripts of Walker's telephone calls to Wittenberg, will convince the Michigan Supreme Court to grant Walker a new trial. The conflict of interest that occurred when Wittenberg tried to hide from Walker "that he had converted $40,683 of Defendants cash for his own purposes," Birch wrote the Michigan Supreme Court, "is so fundamental that it cries out for reversal granting Defendant a new trial." Wittenberg said he just wants to salvage his reputation and his honor as a lawyer at the Grievance Com-mission's formal hearing, which probably will not take place until September or October.

In his response to the commission's charges, Wittenberg presented letters from two people he plans to ask to testify on his behalf. One was from Eric Kaiser, the task force prosecutor, who praised Wittenberg's efforts at Walker's tri out," Walker said. Wittenberg told The News there was never any misunderstanding. "The $20,000 was to cover any criminal case, and I was successful in preventing him from being indicted. The $40,000 was a contingency fee in the civil case." While they were still arguing about it, barely a month later, the task force raided Walker's house again.

Same drill no drugs, records, paraphernalia but some cash. This time just over $40,000. Again agents declared the money narcotics-related, and seized it. Arrest and trial This time, however, some things were different. The task force had moved its prosecution out of the federal courts, and into the Washtenaw Circuit courtroom of Judge Donald E.

Shelton, on the grounds that the original arrest had occurred in Ypsilanti. Most importantly, agents finally had "turned" Johnathan Hill. He agreed to testify against Richard Walker in exchange for a sentence of lifetime probation no prison. With that linchpin in place, agents sprang their trap, arresting Walker and 27 other people in four states. Walker, they announced, was leader of a ring that had flooded the Midwest with at least 100 kilos of cocaine.

Wittenberg, once again representing Walker, immediately asked for return of the seized $40,000, and the task force reluctantly had to agree. "In a sense, we'd taken the same money twice," said Eric J. Kaiser, chief trial attorney for the Macomb County Prosecutor, who was assigned to the task force at the time. "We determined that the $40,000 was part of the original $120,000. And the first time, the federal government had decided the money was unforfeitable." Five months before Walker's trial, the task force returned the money, in a check made payable to Wittenberg.

According to Walker and a formal complaint now pending before the Michigan Attorney Grievance Commission, however, Wittenberg neglected to inform Walker or Walker's girlfriend, who was struggling at this point to feed their baby and pay the rent that the money had been returned. Wittenberg's actions during the trial were praised by lawyers from the GET -(T( Ml IT CAC FREE Safety DAYL Inspection (most cars) 8m on ton ancvor raw brains NttvUWwttri other special ottert. PrMtnt ooupon ufften rtquattmg mtvk. Bttrott-Csntril -(813) 848-0020 578-1880 886-0022 534-6820 778-1018 548-8060 824-1880 563-8055 586-6017 468-1138 725-3411 453-1149 932-2080 234-3010 773-7340 374-0444 589-9015 751-4240 722-5189 itrnoGrm 919 WtatKS (818) tffitjslirtJ erst (810) Mfesvus. (810) Erosso Potato iWirs? (813) I BEST (818) ML Qestens StJttast, Plpntt irm (313) Port torn zss (810) Rascvflli St CM Taylor vsssr (313) Troy sis" (810) WBTM-tHSt SffiS (310) WesSmi (813) LlpMUlIU KMMrtt VU ON ei 996, TtwBrake Shop -nrf vu i a i mm mm as a kilo (i.i pounds).

Most times, he said, he would ask Hill, This is that same stuff from Richard, right?" Another dealer fingered by Lewis, Pernell Burgess, was arrested, and also agreed to cooperate. He said he also had been buy ing Johnathan Hill's cocaine in Detroit, and Hill had told him it was being supplied by "Richard the race car driver." Lewis told investigators he had never seen "Richard," but knew where his store was, because he had accompanied Hill there twice to buy drugs, remaining in the car while the deal went down. He drove police to Richard Walker's car shop on Fenkell in Detroit. Agents believed they had found the ringleader. Walker gets a lawyer For a frustrating six months, however, the task force drew no closer to Walker.

Hill was arrested, but refused to cooperate, and no one else ever had met "Richard" face to face. A tap on Burgess' phone eavesdropped on 3,000 calls in two months, leading to several other suspects, but never was there mention of a "Richard." In June 1990, agents obtained a search warrant and raided Richard Walker's home, a modest bungalow on Piedmont. Agents found no drugs, drug records or drug paraphernalia, but when they searched under the wooden frame of the hot tub, they found $120,000 in cash, stacked in $1,000 bundles. But they found five guns, including two 9-millimeter pistols and an AK-47 assault rifle. Walker said $50,000 of the money was his, used for his car transactions, and $70,000 belonged to the woman he lived with, who had received the bulk of it from the settlement of a lawsuit over a work-related injury.

He told The News he had just purchased the guns at a show at the Lightguard Armory because "I'm enthused with guns, it's like a hobby." Federal agents said the cash and guns were drug-related, and seized them. They made it plain that Walker would soon be indicted for drug trafficking. In trouble with the law for the first time, Walker turned for advice to his birth father, Dick "Night Train" Lane. "I introduced him to Howard (Wittenberg)," Lane told The News. "I'd known Howard 30 years, he'd been my lawyer, we worked on projects together, passed a lot of money back and forth together." Wittenberg is well known in Detroit legal and political circles.

He was Eugene McCarthy's state presidential campaign chairman in 1968, helped handle the finances in Jim Blanchard's successful run for governor in 1983, was considered for the most recent U.S. Attorney's appointment and sat on the Berkley school board. Walker said Wittenberg agreed to take care of the forfeiture matter and any criminal case that might arise from it for $20,000. Walker and his girlfriend paid the money within days, in two 10,000 installments. Wittenberg immediately filed papers demanding return of the $120,000 and other seized property, because there was no evidence it was related to illegal drugs.

Belatedly, the government tried to call Arthur Lewis as a witness to show that it was, but U.S. District Court Judge Paul V. Gadola denied the attempt, dismissed the case and ordered the $120,000 but not the guns returned. The threat of federal criminal charges against Walker evaporated. Walker's celebration was dampened somewhat, he said, when he and his girlfriend received their money back from the government and found Wittenberg had kept a third $40,000.

"He told us it was all a misunderstanding, that he'd straighten it bed hard, you have to sleep in it," he said. "Richard has to learn that. Racing the "Night Train" When Richard Walker was growing up in Detroit playing football, running track and swimming for Cpoley High in the early 1980s he had no reason to believe his father was anyone other than Murray Walker, the man his mother had married when he was about 3. Murray Walker was a heavy equipment operator for Ford Motor Richard Walker said in an interview last week, sitting in the attorney's conference room at the Cotton Correctional Facility in Jackson. "I've worked on cars all my life, thanks to him," Walker said.

"Every time he'd go outside to work on a car, he'd take me with him. He gave me a '70 Maverick to work on, and I rebuilt the whole engine when I was a sophomore in high school." After he graduated from Cooley in 1982, Walker's parents divorced. He was sitting one day with a woman who had helped raise him, Nettie Davis, when she came across the name of Dick "Night Train" Lane in a newspaper article. In a halting voice, she told Walker that Lane was his biological father. "I was stunned," Walker said.

"I remembered him visiting my mother when I was only about 3 or so, but I'd never Been him or heard from him in all the years since." At Davis' urging, Walker called Lane, then went to visit him at the Detroit Police Athletic League, where Lane was executive director. "We shook hands, and he hugged me," Walker said. The two began visiting each other occasionally. By the late 1980s, Walker had become a fairly successful drag racer, first in street cars, then in high-performance vehicles. He completed a course at the Roy Hill Drag Racing School in Rockingham, N.C., in 1989, and received his National Hot Rod Association pro license.

"Richard caught on to drivin. He had potential," Hill told The News. After that, Walker made money touring the South, running match races against the local heroes in his pro stock T-Bird named "Night Train" his best time was 7.19 seconds (193 mph) for the quarter-mile. Back home, he opened Richard's Auto Parts, a store on Fenkell at Lesure, and by 1990 had another business on the premises, Richard's Customs, doing fancy pickup conversions and race-car building. It was a cash-and-carry business, Walker said, and he got in the habit of keeping large sums of cash handy so he could visit car shows and make transactions on the spot, paying or receiving as much as $25,000 for a racing engine.

And there was a lot of traffic at the store, Walker said. One casual friend he knew only as Keith dropped by, occasionally with a "friend, Johnathan Hill. It would turn out that Johnathan Hill would help send Walker to prisoa An informant calls According to court records, the drug investigation began on Jan. 12, 1990, when an informant telephoned a detective offering to set up a drug dealer named Arthur Lewis, who lived on Oaklawn in Ypsilanti. Within hours, the informant was supplied with $100 in marked money, and had made a controlled buy of one-sixteenth of an ounce of cocaine from Lewis.

The next day, agents from the Southeast Michigan Conspiracy Organization, a federal-state-local task force, obtained a search warrant and raided Lewis' house. They s3V other side, including Eric Kaiser: "Howard was a pain in the butt My client did nothing, you guys got no case' that was Howard, all the tame. But Walker and the Grievance Commission contend that parts of Wittenbergs trial strategy were tated by his desire to hide the fact that the money had been returned. Wittenberg waived Walker's preliminary examination, a hearing at which judges occasionally throw out a charge for lack of evidence; opted for a bench trial before Shelton, rather than a jury trial; and then counseled Walker against testifying on his own behalf. The trial took only a few days.

Hill testified that he had purchased cocaine directly from Walker, in amounts ranging from an eighth of a kilo to a kilo, on 20-30 occasions. Arthur Lewis told his story from the stand, and also received lifetime probation for conspiring to deliver cocaine. Pernell Burgess added his corroboration, in exchange for a 9-to-30-year sentence on conspiring to deliver a lesser amount of cocaine, a charge that usually carries a minimum of 20 years in prison. Shelton might not have believed any of the three drug dealers independently, but, taken together, their testimony was credible. He found Walker guilty of conspiracy to possess more than 650 grams of cocaine with intent to deliver.

The sentence for that conviction is life in prison, no parole. The crime of conspiracy involves a criminal agreement," said Timothy M. Kenny, a veteran Wayne County prosecutor who handled the task force's case before Shelton. "If the court is satisfied the criminal intent was to deliver over 650 grams, we've met our burden. We don? have to present the actual (cocaine) in court." Where it stands Five months after he was sent to prison for the rest of his life, Walker was desperate for money for a good appeals lawyer.

He had one, recommended to him by Wittenberg, but wasn't satisfied with him. So he wrote Kenny, the prosecutor, asking when his $40,000 might be returned. Kenny promptly sent Walker a copy of the check cut to Wittenberg 10 months earlier. The most passionate believer in Richard Walker's innocence, and the most tireless fighter for his cause, is Patricia Walker, Murray Walker's second wife. Richard Walker's birth mother died of cancer last year.

With Patricia Walker's help, Richard Walker devised a method to tape record telephone calls from behind prison walls. According to court documents, I ft J-" Jj 1 1 i Sign up at your local CHAMPS store to take part as NIKE presents NFL AIR-it-OUT, the NFL's national 4-on-4 flag football tournament. It's open to players of all ages and abilities (teams will VT be matched by skill level). So check your air speed and sign up for NFL AIR-it-OUT today. Plus, fans and players alike can test their skills when Sprint presents the NFL Experience on Tour, pro football's interactive theme park.

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