Defense planned to seek sanctions in genocide case

August 27, 2011 - 6:10 PM

WICHITA, Kan. (AP) — The U.S. Justice Department decided to end its immigration case against a Kansas man suspected of participating in the 1994 Rwandan genocide after defense attorneys told the government they planned to seek sanctions against prosecutors for withholding evidence, a defense lawyer says.

The comments from defense attorney Melanie Morgan on Friday came a day after a federal judge tossed all charges against Lazare Kobagaya, 84, in what was touted as the first case in the U.S. to require proof of genocide. Prosecutors had asked the judge to set aside Kobagaya's visa fraud conviction and dismiss a charge of lying during his citizenship application after spending more than $1 million to convict him.

Jurors in May found that Kobagaya, a Burundian immigrant now a U.S. citizen living in Topeka, lied on immigration forms about his whereabouts at the time of the 1994 genocide but said the government did not prove he took part in the atrocities. They deadlocked on the second count related to lying on his citizenship application.

Prosecutors recently had notified the defense that they planned to retry the case. But in their motion seeking to dismiss it, prosecutors said they had identified a potential issue with the jury instructions and witness information that likely would warrant a new trial even on the single count for which Kobagaya was convicted.

The government has said it inadvertently failed to disclose information from a consular officer in Kenya that the defense says would have bolstered its case.

"It was a very serious mistake," Morgan said. "It is not one I would have expected experienced prosecutors to make."

The consular officer, who was listed on Kobagaya's immigration application, had told prosecutors that even if she had known Kobagaya was in Rwanda in 1994, it would not have caused her to inquire further because Kobagaya was a Burundian national.

A key argument in the defense case was that the alleged falsehood about Kobagaya's whereabouts during the genocide was not a "material fact" that would have caused further investigation by immigration authorities that could have possibly kept him out of the United States.

More than 500,000 Rwandans, mostly ethnic Tutsis, were massacred by Hutus during the genocide. The bloodshed ended when mostly Tutsi rebels led by Paul Kagame, who is now the Rwandan president, defeated the extremists. Kobagaya's family believes the genocide accusations against him were fabricated by the Rwandan government in retaliation for his testifying on behalf of a neighbor accused of war crimes in Finland.

Morgan credits the government's sudden reversal in its decision about whether to retry the case to a letter she sent to the Justice Department. Defense attorneys declined to release a copy of that letter, but Morgan said she told the department that the defense planned to seek to have the case dismissed and seek sanctions against prosecutors.

"I do feel like it was very influential in them coming to a decision about how the case should ultimately be resolved," she said.

Justice Department spokeswoman Alisa Finelli said the agency would have no comment beyond its court filings. In them, the department wrote that based on the "totality of circumstances," including the substantial resources required and the jury's verdict in the first trial, it decided not to retry the case.

Richard Shain, one of the jurors, said Friday he chuckled when he read about case's dismissal in the newspaper.

"It was a waste of taxpayer's money," he said.

The Justice Department has reason to be cautious after the embarrassing end to the prosecution of the late Sen. Ted Stevens, R-Alaska. A judge overturned Stevens' conviction and ordered a criminal investigation into prosecutors' conduct after the department admitted its lawyers did not turn over exculpatory evidence to defense attorneys.

Kobagaya's son, Dr. Andre Kandy, said that when he told his father that prosecutors were dropping the charges, Kobagaya — who speaks little English and walks with a cane — joyfully jumped into the air.

Kandy said he believes the defense letter caused someone in the Justice Department to analyze the case and realize it had been duped by the Kagame's government.

"This begs a question of how such a tiny country of Rwanda can have so much influence to such as large country as the United States ... that the U.S. government can drag an innocent man through that kind of mud," Kandy said in a phone interview from Florida.

Kagame's government did not respond to an email seeking comment.