A High Profile Case In Puerto Rico Is About To Go Out With A Whimper And An Injustice To Julia Keleher
If ever there should have been a trial to demonstrate the ugly side of prosecutorial discretion, it was the case of Julia Keleher, the former Secretary of Education for Puerto Rico. Trials, no matter their outcome, reveal as much about our justice system as they do about the truth. At times, we get more of the former and less of the latter.
Keleher made her initial court appearance in Puerto Rico federal court on July 17, 2019, accused of conspiracy and wire fraud. The entire island territory was already convinced of her guilt and a trial was meant to be nothing but a formality of a known outcome.
That morning, Keleher left Washington DC accompanied by her 72-year-old father. Entering the airport, a photographer snapped her photo and sent it to an eager mob of press who announced that Keleher was on her way and would soon land in Puerto Rico.
A protest erupted as Keleher made her way out of Luis Muñoz Marín International Airport but it was nothing compared to what awaited her at the U.S. District Court for the District of Puerto Rico. It was not unexpected. Security personnel pushed back a crowd that punched, screamed and spat at Keleher as she pushed her way into the front of the courthouse screening area. Stunned from the experience, Keleher tried to compose herself once inside the building, but the press pool and photographers had jumped the security checkpoint and followed her through the courthouse door where one reporter yelled, “Why did you steal money from the children!”
Keleher’s attorney Maria Dominguez told Judge Pedro A. Delgado-Hernandez that in her 34 years of practice in federal court that the scene she witnessed in front of the courthouse was unprecedented. For Keleher’s safety she was allowed to leave out a back door to the courthouse. Immediately, there were claims Keleher was getting special treatment.
Keleher was appointed to the Puerto Rico Department of Education in January 2017. From 2017 until her resignation in April 2019, Keleher led wide-scale education reform efforts in Puerto Rico and enacted a number of controversial decisions. These included adopting charter schools and providing private school vouchers in an effort to give parents more options in what was an undeniably failing public school system. After the catastrophic 2017 storm season when Hurricanes Irma and Maria wrecked homes and destroyed the islands’ archaic electrical grid, Keleher saw the opportunity to implement a plan to resurrect the school system. Puerto Rican lawmakers, siding with Keleher’s recommendations, approved a sweeping bill to reshape its education system through decentralizing the Education Department and allocated more funds to private schools. Keleher became a lightning rod of public criticism for the changes.
Keleher resigned as word of backdoor dealings started to dominate the press. She was charged with numerous wire fraud crimes in connection with an alleged conspiracy with at least six other former government officials to steer $15 million in government contracts to politically connected consulting firms. What was strange was that there was no allegation of a bribe or any real benefit to Keleher … she just approved one of the hundreds of contracts she regularly signed. With no money or payoff, there can’t be a crime .. that’s a decision by the Supreme Court (see Bridgegate decision).
Regardless, the Assistant US Attorneys held a press conference following Keleher’s initial indictment and stated that “individuals … involved in a public corruption campaign and profited at the expense of Puerto Rico’s children.” The narrative that Keleher had a hand in harming children had been set. The Office of Inspector General Special Agent in charge promised to “aggressively pursue those who seek to enrich themselves at the expense of our nation’s students.” Soon after that press conference, the judge issued a gag order prohibiting defense and prosecutors from making any further statements about the case until trial. Keleher’s side of the story was sealed until she went to trial.
Keleher’s 2019 indictment was met with unbridled joy as the citizens of Puerto Rico had been calling for public officials to be held accountable. PR’s Governor Ricardo Rosselló resigned in July 2019 amid claims of corruption which were exposed after the US territory’s disastrous attempts to recover from the hurricanes. Rosselló was never indicted but someone needed to be held accountable and Keleher fit the bill.
As one would expect, most cases initiated by the US Department of Education Office of Inspector General involve significant financial loss to the government. In Keleher’s case, there was no identifiable victim and there was no loss to the government. There was no allegation that anyone conducted their work poorly or inadequately, that the work was not needed, or that Keleher benefited personally from the contract.
In January 2020, yet another indictment against Keleher was handed down alleging honest services fraud – this time claiming she used her official position as the Secretary of Education to enrich herself by soliciting and accepting things of value from others, something missing from the first indictment. Her co-defendant Ariel Gutiérrez-Rodríguez was alleged to have facilitated Keleher’s receipt of financial benefits. That benefit was defined as a transaction to close on the Ciudadela apartment complex in exchange for her signing a letter purporting to give 1,034 square feet of an area adjacent to Padre Rufo School to a private company. The limits of Honest Services fraud were successfully argued in the 2016 Supreme Court decision that set limited use of the statute. Keleher did not have authority over the school buildings or the land on which they sat since the Department of Education did not even own the land, and the letter she signed complied with the an official government zoning plan signed in 2004. In other words, Keleher’s letter offer had no legal effect anyway.
After Keleher’s second indictment, her defense attorney, Dominguez, gave a television interview in which she said the government was making “serious, serious, serious false representations” of which, if “the grand jury were aware, it is very possible that it would have derailed the accusation.” Two days later, the government asked for a second gag order characterizing Dominguez’s statements as “imputing nefarious motives on prosecutors” and “threaten[ing] to interfere with the possibility of a fair trial …” The court granted the government’s gag order the same day it was filed, without a written submission or oral argument from defense counsel and it has remained in place.
Despite the gag order, and the fact that the search warrants remain sealed, Keleher’s case was widely covered in Puerto Rico news. In a 2021 forum, reporters shared details about how their reporting tracked the federal investigation and a bank employee was even arrested for leaking to the press a search warrant for Keleher’s bank accounts.
Keleher and her attorneys argued that agents who conducted the investigation in the second case went beyond what was in the search warrant – which only authorized an investigation into the Department’s contracting. US District Judge Francisco A. Besosa concluded, “The warrants did not authorize the officers to seize the emails upon which the charges in this case are based. The warrants’ probable cause and their description of items believed to be concealed were based on allegations of the two schemes concerning DOE contracts, not the alleged scheme at issue here. Where a warrant is based on probable cause of one scheme, the warrant does not authorize seizure of emails pertaining to another scheme.”
However, Judge Besosa went on to find that “There is an exception to the warrant requirement applicable here. The exception is known as the plain view doctrine” and the Judge determined that the search of Keleher’s emails were permissible in this case based on that doctrine, a doctrine that applies to searches of physical spaces such as houses or other buildings, without consideration of how advances in technology and searches of electronic information have influenced modern-day interpretations of citizens’ Fourth Amendment rights (right to prevent illegal search and seizures).
Keleher sought to have her trial moved out of Puerto Rico because, given the results of a July 2019 community survey that found 8 out of 10 people thought she was guilty, she felt that there was no way she could get an impartial jury. The motion was denied. Had Keleher gone to trial, she could have been looking at decades in prison and it weighed on here whether she should plead guilty when she believed that the justice system had not given her her day in court.
On June 8, 2021, Keleher pled guilty to two counts of conspiracy that assured her a six month prison term, followed by 12 months of home confinement. Her fine? $21,000. The sentence was carried out on Friday, December 17 via video-link. The first conspiracy count does not even relate to a corrupted bidding process alleged in the earlier indictments. In a second conspiracy charge Keleher admitted she knew a developer was providing her a closing bonus for the purchase of her condo when she signed the letter relating to the land adjacent to a school.
Keleher’s plea agreement reduced the 43 total charges she originally faced down to two … none from the original July 2019 indictment. While the mob in Puerto Rico can draw satisfaction of Keleher going to prison, they may not ever understand what she did to actually deserve a prison term … but that really did not seem to matter.
Keleher released a statement expressing her love for the people of Puerto Rico and then added her thoughts on criminal justice: “The gag order has prevented me from speaking publicly about the case for over 2 years. But even now, as I am about to spend six months in prison, I am scared to say everything I want to because I’ve seen what happens when you try to call out powerful institutions and speak truth to power.
“I would have liked to have litigated this case until the end, but the last two and a half years have taken a toll on my family, myself, my career, and finances, and it is time for me to keep moving forward with my life. As for my future, I am more committed than ever to continuing to do what I can to improve opportunities for youth and fix broken systems. I now have an additional mission that connects with criminal justice reform and supporting the ability of people to have second chances.”