Against all odds

Scrappy, self-assured, and quick with a quip, Dallas defense attorney Tom Mills has spent the better part of his 23-year career defending people charged with wire fraud, money laundering, bankruptcy and insurance fraud, and other white-collar federal crimes. Generally, the guy likes the thrill of a good courtroom fight.

On a particular day last month, Mills was feeling a lot like a sacrificial lamb It was after Mills accepted an indigent defendant's case from the federal magistrate's office that he had picked up the first scent of a slaughter. That's when Mills learned his adversary in the case of "U.S. vs. Mark Linnear Hayes"--making his first courtroom appearance in three years--will be Paul Coggins, U.S. attorney for the Northern District of Texas.

"When I heard Coggins was going to try it, I'm thinking, 'What the hell? What kind of a slam-dunk is this going to be? The U.S. attorney never tries a case,'" Mills says.

That's just about right. Coggins, an experienced criminal-defense attorney whom President Clinton appointed in 1993, has never tried a case himself since taking the job. Two previous cases he'd hoped to litigate--a drug case and a fraud case--were pled out.

Historically, when U.S attorneys go to court, they pick trials that are high-profile and fueled for maximum political mileage--like the prosecution of Jack Ruby for the slaying of Lee Harvey Oswald, or the trial of the kidnappers of Amanda Dealey, daughter-in-law of late Dallas Morning News executive Joe Dealey.

Coggins fervently denies any media motives.
"I hate to tee this up too much in the press," Coggins said last week. "I'd really like to slip in there quietly and just try the case. I'd like to get in the courtroom at least once a year. It's a good thing, sort of like the police chief who gets out and walks the beat.

"After the last case was pled out, I asked my staff to start looking for a case that's relatively short and that's relatively certain not to plead out."

Not to mention relatively easy to win--which "Hayes" almost certainly will be. The case features a mountain of seemingly rock-solid evidence for the prosecution, a defendant with a nasty habit of fleeing prosecution, and a codefendant in the crime who's already been convicted and imprisoned and is likely to testify against Hayes.

Beyond that, the case carries added political weight for the U.S. attorney. It's quite possible that Mark Linnear Hayes--suspected in a string of well-publicized armed robberies stretching over two years from California to Georgia--will be the first person on Coggins' turf tried under the new "three strikes and you're out" federal statute--a pet piece of President Clinton's 1994 crime bill. Hayes, 39, of Los Angeles, has already been convicted and served prison sentences in California for a 1980 residential burglary and a 1981 armed robbery.

In August 1993, a Norwalk, Calif., jury convicted Hayes of armed robbery, but when the panel returned with its guilty verdict, it learned what the judge and attorneys had discovered during deliberations: Hayes, who was out on bail, had fled. As a result, he was never sentenced, says David Finn, the assistant U.S. attorney who will serve as second chair to Coggins in the May 13 trial.

Hayes remained a fugitive for more than two years, and a suspect in several armed robberies across the country--including a heist at an East Dallas Eckerd Drug store on April 24, 1995, for which he was indicted on February 6. Authorities finally caught up with him late last year in Atlanta after acting on a tip from a viewer of the television series America's Most Wanted.

The show featured a typically melodramatic re-enactment depicting robberies Hayes is alleged to have committed. Dubbed the "Ninja Bandit," for his totally black ensemble, including a ski mask with eye holes, Hayes is suspected of staking out drug and grocery stores, cutting a hole in each roof, then rappelling down a rope to the stores just after the managers have arrived to open the businesses. In some cases employees were pistol-whipped and the suspect made off with thousands of dollars.

California police and FBI agents feel sure that Hayes is part of a highly organized, sophisticated robbery ring active in the San Diego and Los Angeles areas for 15 years, says Pasadena, Calif., Police Sgt. Gary Capuano. Hayes' father, Charles Lee Hayes Sr., was charged along with his son in an Escondido, Calif., armed robbery in 1981 and convicted. Mark Hayes was eventually tried and convicted as well.

Court documents show that Hayes' connection to Dallas surfaced on the morning of the Eckerd robbery, when police followed a tracking device on a stash of stolen cash to a Holiday Inn at 1935 Market Center Boul-evard. There, a police helicopter and 30 squad cars chased down Keith Marvell Walton, 25, who had scaled a fence behind the hotel. Inside one of the hotel rooms, officers found a scanner tuned to the Dallas police channel, a pile of black clothing, and a green laundry bag stuffed with $9,000 in cash and a handgun.  

According to court records, Walton told police that Hayes, whom he had known briefly in California and had accompanied by plane to Denver, then Dallas, had robbed a drug store and fired a gun at an employee. Hayes got away from the hotel that morning. Walton went to trial and was convicted in federal court last May on three counts: conspiracy to commit robbery; aiding and abetting a robbery; and using a firearm in the commission of a crime. Hayes now faces trial on the same counts as well as two others: traveling across state lines with the intent to commit robbery and interstate transport of a firearm to commit robbery.

"This is gonna be a handful," says attorney Mills of his case. He will not discuss his specific trial strategy, though he suspects he'll attempt to raise the question of mistaken identity.

"My client maintains that he's innocent," says Mills. "On the other hand I know he has this bad reputation through these things that his codefendant said, but Walton seems unbelievable and unreliable to me."

A few weeks ago, Mills delicately described his client as "difficult," though he now says Hayes, who is being held in a federal detention center in Seagoville, "has become very helpful and understanding of what's at stake here."

Hayes' first court-appointed attorney, G.A. Lee Hight, filed a motion to withdraw from the case on January 23. Hight declined to discuss the case, but his motion states that Hayes had spurned Hight's efforts to win his client's "trust and cooperation." Hayes, according to the document, also had repeatedly requested an African-American lawyer.

"Defendant Hayes refuses to follow my legal advice or even permit me to fully explain the law that applies to his case," Hight wrote. Hayes "refuses to disclose the identities and locations of witnesses he swears will exonerate him at trial. [Hayes] asserts that [Hight] would immediately communicate this information to the government in an attempt to betray him and compromise his legal position."

When Mills discusses the case, he simply shakes his head.
"It's going to cost the government some real money," he says.
In the early discovery process, assistant prosecutor Finn revealed that the government sent samples of Hayes' head and pubic hair out of state for DNA analysis. Mills says he'll now have to hire his own DNA expert to refute the prosecution's expert witnesses. Because he's court-appointed, he'll send the hefty bill to Uncle Sam.

"When you hear the lengths they're going to, and that Coggins is going to try it, it doesn't give you a great feeling of optimism," says Mills, surrounded by walls of trophies of mallard ducks, long-horn sheep, and other wild game in his office.

Finn declined to discuss potential witnesses or other evidence in the case, but it seems certain that the government will call Lynn Thompson, the store manager who was robbed at gunpoint last spring at the Eckerd Drug at 6110 Samuell Boulevard. Thompson, 33 at the time and a father of three small children, testified in codefendant Walton's trial that minutes after he opened the store for the day, he heard a crashing noise. As he moved quickly toward the front of the building, he saw a man dressed in black with a gun in his hand. He testified that as he ran toward an emergency exit in the stockroom, "I hear a handgun go off, just 'boom,' and I'm thinking, you know...I don't know what I was thinking. I was thinking of my kids, really."

The bullet missed Thompson, but he testified that the suspect then chased him into the stockroom, hit him on the nose with the pistol, and forced him to open a time-lock safe. The robber handcuffed Thompson and made away with more than $20,000 in cash and checks.

Hayes, Coggins says, is a clear example of the kind of violent career criminal for whom the "three strikes" law was designed. Some civil libertarians and even prosecutors have criticized the statute, fearing that defendants might go to prison for life on a minor third strike.

"Repeat violent offenders are high on our list," Coggins says. "This is a guy we'd like to take out of circulation for a long time."

The wrinkle in the Hayes case may come in the legal interpretation of what constitutes his past strikes. Although Hayes was convicted but not sentenced before fleeing California in 1992, it's unclear whether those convictions will count against him.  

"The statute is so new, a case like this has never been decided by a court," Coggins says. "My office is looking for any other criminal convictions he has that might fit under the statute."

Regardless of whether the government pursues the three strikes angle, "if there's a conviction in this case, he's going to be looking at some hard time," Coggins says. Sentencing guidelines recommend 40-plus years, and the federal system offers no "good time."

Mills has butted up against that "take no prisoners" attitude with prosecutors before--just never with the point man for the U.S. Justice Department in North Texas. He says that makes him all the more resolute in his desire to fight.

"At first I thought, whoa, I'm gonna get my ass kicked. But if this is going to be about politics, I think I want to fight to the end.

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