KEEPING HIS OWN COUNSEL
DISBARRED AND IMPRISONED, NICK AVILA CAN'T STOP BEING A LAWYER.SPLIT VERDICT IF ATTORNEY NICK AVILA WAS SUCH A GREAT GUY, WHY IS HE IN JAIL?
How the drugs ended up in Avila's hands is undisputed. According to federal investigators, Phil Guerrero was driving in Louisiana on August 21, 1987, when he was pulled over by state troopers who observed him making an illegal lane change. The troopers noted that Guerrero was acting nervous, and asked if they could search his 1980 Monte Carlo. He agreed. It didn't take them long to discover the two kilos of cocaine in the trunk.
It also didn't take long for Guerrero to agree to cooperate with the police. He confided that he was working for a Denver attorney named Nick Avila, who had arranged for him to pick up the drugs in Miami. In fact, Guerrero said, he had done the same thing twice before.
Agents for the Drug Enforcement Administration quickly formulated a plan to snag Avila. Guerrero phoned Avila and told him the car had broken down. Avila, according to the taped telephone call, instructed him to get on a bus and return to Denver immediately. On August 23 Guerrero made another tapped phone call to Avila from the Denver bus station, saying that he'd arrived.
When Avila arrived at the station, Guerrero handed him the key to a station locker. Avila opened the locker, took out the duffel bag with the cocaine and walked with Guerrero back to his Ford Bronco. As he was getting in, a swarm of cops and DEA agents swooped in.
The case was prosecuted by Stephen Peters, an articulate and well-regarded assistant U.S. attorney who works from a wheelchair. Although the investigation of Avila's alleged drug dealings went relatively smoothly, people involved with the case say that Peters soon came to dislike Avila intensely. Peters declines to discuss his opinion of the case. But, he says in the even and metered tone of someone accustomed to reciting information before a jury, "These are the facts:
"Shortly before Nick Avila's trial date, I got in my car to go to work, and some sharp sounds went off. When I got to work I discovered that the primary witness in the case against Nick Avila, Phil Guerrero, had been shot twice at close range by an assailant with a sawed-off shotgun. The first shot Guerrero deflected with his wrist. The second shot, which was intended for his heart, went off his zipper.
"After I learned this news, the law enforcement authorities examined my vehicle, and they said it seemed as though an explosive device had been on my car, inside the engine area. A few days later Judge Carrigan [who presided over the case] heard the evidence of Phil Guerrero's homicide attempt and ordered Nick Avila held without bail pending his new trial date.
"On the morning of the rescheduled trial date, a fire was set in my apartment complex. Fortunately, I was awake, so I was able to escape. The elevators were shut down, so I was able to evacuate descending the stairs using crutches and braces. I tried that case living out of a hotel room."
None of those cases was ever solved. Avila denies any involvement in any of the three incidents.
The trial began on January 25, 1988. Avila, representing himself, argued that he had been set up--that Guerrero was acting on his own and had fingered him under pressure from police and in anticipation of saving his own hide. (Guerrero, who recovered to testify against Avila in court, was admitted into the federal witness protection program; it is unclear whether he is still in it.)
Today, Avila explains that in picking Guerrero up at the bus station, he merely was doing a favor for an old friend who was stranded and needed a ride. What appeared to be a drug pickup, he says, was him helping a friend with his luggage. Finally, he points out that DEA agents never found any money that would suggest he was dealing drugs ("I had $10 in my pocket at the time"), or anybody to testify that they'd ever bought cocaine from him.
"I really didn't think the jury would believe Phil Guerrero," Avila says today. "He was an admitted cocaine user and liar, and he told several different stories in court."
The jury was unconvinced. On January 28 Avila was found guilty of conspiracy and intent to distribute cocaine. Three months later, at his sentencing, Peters asked that the judge "impose the strongest possible sentence allowable in this case...the Defendant is an embarrassment to the City and County of Denver, the legal profession and to the judicial system."
The judge complied. On the morning of March 11, 1988, Avila was sentenced to ten years in federal prison. Later that same afternoon he was marched over to the City and County Building, where he was sentenced to eight more years in jail for violating the conditions of his state probation.
Nick Avila Sr. died in 1991, and Nick's mother, Stella Avila, now lives alone in a well-tended brick house in northwest Denver. She is barely five feet tall, with graying hair. Today she wears a red embroidered sweater, with a blue shirt and khaki-colored pants. A watch hangs around her neck, an accommodation to her poor eyesight.
"Nick's father and I are law-abiding citizens," she says. "We thought he had a good foundation for doing the same. When this happened, I couldn't even speak to Nick. I was dumbfounded. His father was the same. I just couldn't understand. I just couldn't understand."
She shakes her head. "I just couldn't understand."
Nick Avila's protestations of his innocence might have been smothered in 1988 under the accumulated weight of two jury convictions if it hadn't been for McGuire's sentencing-day remark that the Felix DeHerrera of Avila's state DMV case was actually the same person as the Phil Guerrero of Avila's federal cocaine case. The remark has set off an avalanche of paperwork.
Based on McGuire's statement, Avila has filed a half-dozen separate appeals. He has six formal grievances against federal and state prosecutors before the Disciplinary Counsel's office. Two more of Avila's official complaints have been heard by the Colorado Supreme Court's Grievance Committee. He has five separate lawsuits pending in Denver, Boulder and Washington, D.C.
According to Avila, the DeHerrera/ Guerrero identity mixup is crucial toward proving his innocence for this reason: He has claimed all along that he is innocent and, at worst, has simply associated with the wrong people. In the cocaine case, for instance, Avila insisted that Guerrero was transporting the drugs on his own, and dragged him in under pressure from federal agents and prosecutors.
In Avila's mind, if Guerrero really was the intermediary in the state case, it would at least suggest that Guerrero--as someone who frequented Avila's law offices--also could have been operating as a part of the DMV scam on his own. "He used his access to my office and to my clients," he explains. "This solved the entire riddle of my cases." (Further supporting Avila's argument is the fact that Guerrero himself had his driving record altered during the DMV scam.)
Using McGuire's statement that DeHerrera was Guerrero, Avila in 1990 requested a new hearing in front of Judge Peterson so that he could have the opportunity to prove how the identity mixup pointed to his innocence. She denied the request.
Avila next filed the same request with the Colorado Court of Appeals. On August 6, 1992, the three judges reversed Peterson's decision and ordered that Avila be given a hearing to present his evidence that the identity foulup could prove him innocent of any involvement in the motor vehicles records-deletion case.
That decision isn't Avila's only legal victory. As the person appointed to clean up the DMV scandal, it is clear that McGuire was a remarkable success. Largely due to his diligence and skill, all 22 people implicated in the DMV scam were found guilty. Throughout Avila's numerous appeals he has vigorously defended his work as the special prosecutor.
Until last April, that is. Ten months ago Avila convinced Judge Simons to remove McGuire from his special prosecutor post because his explanations of whether DeHerrera was or was not Guerrero kept changing. In a scathing comment, the judge blasted McGuire's testimony as "inconsistent, to say the least." The flip-flops, the judge concluded, demonstrated an "appearance of impropriety on the part of the special prosecutor."
Gloats Avila: "No one can tell me that that's ever happened in Colorado before--that a special prosecutor has been replaced for ethical reasons."
Still, Avila has a long way to go before he sees the light of day. Even if he manages to convince Judge Simons that DeHerrera is Guerrero, he must also prove that the overlapping identity could clear him of participating in the DMV scam.
That's something that McElroy, the burly and bearded former Marine who this spring replaced McGuire to handle the prosecution's side of Avila's appeals, says is unlikely. "My own investigation reveals precious little about whether they're one and the same person," he says. "And my personal opinion is, I'm not sure whether it actually makes any difference if they're one and the same. I don't think Avila has a leg to stand on."
As Avila's case slowly winds its way through the courts, those who know him can only speculate on the two spectacularly different paths his life has taken. Some have guessed that he simply let being an attorney get to his head, and entered the courtrooms supremely confident that his own skills were enough to convince a jury of his innocence--whether or not it was true.
Others have suggested that Avila developed his own expensive cocaine habit once he returned to north Denver to practice law. "When there's money involved, people can do just about anything," says one Denver detective. "And with dope, that's what it's all about."
"There had been rumors floating around for a while," concedes an acquaintance who asked not to be named. "A few people around town told me he could get them cocaine. I got the feeling that Nick wanted to be a kingpin up there."
Certainly Avila's friendly connections to Hernandez and, later, to Guerrero make that a possibility. "When you start down that path as attorney/friend, you've got to be careful or it can overwhelm you," says Welch, the federal prosecutor.
"Nick always represented a kind of dirtball kind of people," adds Bob Mullan, a former New York City cop and Denver prosecutor who tried his first case against Avila. "When you're always around shit, sometimes the stuff rubs off. And Nick is the kind of guy who I don't think would ever leave behind the neighborhood."
Not surprisingly, Avila vigorously denies any involvement with cocaine. And if he was using it, or earning money from drug sales, he hid it well: None of Avila's friends, acquaintances, relatives, or employees recalls seeing any trappings of wealth or evidence of the unpredictable behavior typically associated with drug use.
"He was always kind of a square guy, really--almost nerdy," says Garcia. "I was shocked by the cocaine thing. It shocked a lot of people. Nick is smart enough that he wouldn't jeopardize everything he'd worked for."
Which, of course, raises the possibility that Avila actually is innocent--that his story of forced confessions and coverups is all true. "The prosecutors have developed an intense hatred of me," he says. "Maybe they don't like my cockiness, or my defiance, or the fact that I've challenged their `indisputable evidence.' Maybe they just don't like defense attorneys."
But, for now, anyway, all of it is just speculation. Indeed, most people who at one time associated with Nick Avila have left it at that and moved on. "He was a good attorney, he was sharp and he had a lot of promise to him; I expected him to go a long way," says Sandoval. "I knew him well."
He pauses briefly before hanging up the phone: "At least I thought I knew him well.
end of part 2
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