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By Alan Feuer
Ever since they took the case last year, lawyers for Joaquín Guzmán Loera, the Mexican drug lord known as El Chapo, have mounted a largely procedural defense. In a series of motions about their client’s harsh terms of confinement and the daunting challenge they face in poring through the evidence against him, the lawyers have argued that Mr. Guzmán’s rights are in jeopardy and there is little chance that he will get a fair trial.
But at a court hearing on Tuesday, the lawyers offered their first hint of an affirmative defense of Mr. Guzmán, saying that evidence exists that he may not be what federal prosecutors have claimed he is for months: the top man in Mexico’s Sinaloa drug cartel. Their proof for this assertion came from an unusual source — the government itself — and the lawyers used it to suggest that Mr. Guzmán might not have been the cartel’s leader, but merely “a lieutenant” who took orders from someone else.
From the moment last year that Mr. Guzmán was brought from Mexico to stand trial in New York, the United States attorney’s office in Brooklyn has insisted that until his arrest, he was the world’s biggest drug dealer, a violent kingpin who personally ordered the deaths of thousands during his decades-long reign atop the cartel in Sinaloa. But in a sealed letter sent three weeks ago to Mr. Guzmán’s lawyers, prosecutors acknowledged that over the years, a handful of confidential informants had contradicted that account, telling them that, despite his reputation, Mr. Guzmán may not have been in charge of his own organization.
Prosecutors dismissed this evidence in court on Tuesday as second or even thirdhand, adding that it was mired in “layers of hearsay.” But they were obliged to turn it over to Mr. Guzmán’s lawyers under what is known as the Brady rule, a practice that requires the disclosure of information that could be favorable to a defendant.
The exact nature of what the informants said remains a secret, but one of Mr. Guzmán’s lawyers, A. Eduardo Balarezo, asked Judge Brian M. Cogan at the hearing to force the government to tell him more about it. Mr. Balarezo said he wanted to know the names of the informants, and when and where they gave their statements, so he could further investigate the claims and incorporate them into his defense.
Judge Cogan declined to issue an order from the bench, saying he wanted to know more himself. He asked if the informants’ statements were “material” to Mr. Balarezo’s strategy. Mr. Balarezo said they were, suggesting that he planned to argue at trial that Mr. Guzmán was not in charge of the cartel. But not wanting to divulge too much to the government, he said he would only tell Judge Cogan more about his plans in private.
From the start, Judge Cogan has been hearing the case in Federal District Court in Brooklyn even though Mr. Guzmán, who twice escaped from prison in Mexico, has been in custody since his arrival in New York in the high-security wing of Manhattan’s federal jail. The fact that he is facing prosecution in one borough but is being held in another has required a remarkable rerouting of local traffic: Every time Mr. Guzmán goes to the court, the Brooklyn Bridge is closed and he is swept across the East River in a conspicuous motorcade of police cruisers, armored cars and ambulances, with lights and sirens blaring.
Last month, complaining about this “spectacle,” Mr. Balarezo asked Judge Cogan to move the trial to the federal courthouse in Manhattan, which is directly connected to the jail in Lower Manhattan. It seemed at the time like an extreme request, but Judge Cogan said on Tuesday he was considering it.
At this stage of the case, Mr. Guzmán does not appear in court that often, but once his trial begins — it is scheduled to open in September and last four months — the bridge would have to be closed twice a day as he moves back and forth between the courthouse and his cell. The closures would roughly correspond with the morning and evening rush hours.
Judge Cogan said the request to move the trial — and thus avoid a long-term traffic nightmare — was “not at all invalid.”
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