Judge Is Asked to Turn Over Papers or Quit Case : Courts: Lawyers for a Mexican businessman accused of plotting to kill drug agent Enrique Camarena say they have a right to see secretly filed documents.

In a highly unusual move, lawyers for a prominent Mexican businessman accused of plotting the murder of U.S. drug agent Enrique Camarena have asked a federal judge in Los Angeles to remove himself from the case unless he agrees to turn over to them numerous documents prosecutors have filed in secret.

The request that U.S. District Judge Edward Rafeedie remove himself was filed without fanfare last week. It is likely to heighten the tense atmosphere that already surrounds the case of Ruben Zuno Arce, who is scheduled to go on trial in April for the 1985 murder of Camarena.

Zuno, 59, has proclaimed that he is “absolutely innocent” of the charges. He is being held without bail in the Metropolitan Detention Center in downtown Los Angeles.

Zuno’s lawyers say they can only guess at what is contained in the secret documents. Since last August, there have been eight such filings to Rafeedie and one to a federal appeals court in the case.

However, it seems likely that some of the documents reveal the identities of potential witnesses against Zuno. The defense says they may contain material that could help them fight the government’s case. Typically, prosecutors also have used secret filings to inform a judge of a new sealed indictment or to describe information contained in wiretaps.

Zuno’s defense attorneys learned of the secret filings after prosecutors submitted routine paper work revealing their existence.

The Zuno case is the latest example of the controversy surrounding a criminal defendant’s right to obtain material the government wants to keep confidential.

Late last year, a federal judge in Washington dropped charges against former CIA official Joseph Fernandez, a defendant in an Iran-Contra case, after the government refused to turn over certain materials to his attorneys. Prosecutors claimed that disclosure of the documents would violate national security.

An “in camera” filing, as it is called in court, is one made by lawyers on one side of a case for the judge’s eyes only. These filings frequently are made by prosecutors who want to keep the identity of an informant confidential in drug prosecutions or organized crime cases. Defense lawyers sometimes make secret filings too.

Criminal law experts say that there is no clear test of when in camera submissions are legal or how often they can be used. Frequently, it comes down to the discretion of the judge, said Philip Johnson, a professor of criminal law at UC Berkeley’s Boalt Hall Law School.

USC law professor Charles Whitebread said such filings are not unusual in drug cases. However, he said, “at some point fundamental fairness and due process command that the guy be allowed to confront his accusers.”

The U.S. Supreme Court has not issued a ruling that deals precisely with the challenge raised in the Camarena case. However, the high court has ruled that at trial, the government has to reveal the identity of its informants or dismiss the charges against a defendant.

In Zuno’s case, Rafeedie has told prosecutors they must disclose the identity of confidential informants within 48 hours of their testimony.

Rafeedie declined to comment on the motion, as did Assistant U.S. Atty. Manuel Medrano, the lead prosecutor in the case.

Zuno’s prosecution is the second trial arising out of the highly publicized murder of Camarena, a Drug Enforcement Administration undercover agent who was kidnaped in Guadalajara, Mexico, on the orders of drug kingpins. He was tortured at a house in that city and in March, 1985, his mutilated body was found at a ranch 60 miles south of Guadalajara.

To date, 19 people have been indicted in the United States on a variety of charges stemming from the murder. Three have been convicted, and Zuno and three other men are awaiting trial. Two of the ringleaders have been convicted in Mexico and sentenced to long prison terms.

Zuno, the brother-in-law of former Mexican President Luis Echeverria, is accused of participating in meetings where Camarena’s abduction was planned. Former high-level Mexican police officials are among those who have been indicted in the case, straining relations between the United States and Mexico.

Zuno’s motion alleges that the Justice Department has been engaged in a “one-way dialogue” with the judge and that the secret communication “raises questions as to the appearance of impartiality in the proceedings against” him.

It also alleges that the secret documents deprive Zuno of his right to due process, effective assistance of counsel and a fair trial, and that Zuno’s need for the documents outweighs the government’s need for secrecy.

The motion specifically asks Judge Rafeedie to disclose the contents of the secret filings or remove himself from presiding at Zuno’s trial.

“On at least seven occasions in this case, the government has filed documents in camera with the district court and has withheld the contents of those filings from defense counsel,” argued Zuno’s lawyers, Edward M. Medvene, James E. Blancarte and Ronald A. DiNicola.

The first such submission was made Aug. 21 and the latest was filed Jan. 23, according to court records.

Prosecutors made their first secret filing in a successful attempt to have Zuno held without bail as a “material witness” in the case.

Without disclosing what he saw, Rafeedie said the confidential information was “extremely significant and extremely persuasive to suggest this witness (Zuno) has a great deal of information” that could be relevant to the trial of another defendant in the Camarena case.

Defense attorneys appealed to the U.S. 9th Circuit Court of Appeals, asking that Zuno be released because he had not been charged with a crime. At the time, federal prosecutors said Zuno might flee if released on bail.

The prosecution argued that it was necessary to keep the source of their information on Zuno confidential because they feared that disclosing it could endanger informants.

“Disclosure of their identities would place the lives of the informants in grave danger,” prosecutors told the appellate court.

“Defendants charged in the Camarena murder case have a long history of murder and violence,” they added. “These defendants have a history of retaliation against confidential informants.

“In addition,” their motion stressed, “at least one of the informants” referred to in the government’s confidential papers on Zuno “is presently in Mexico and is not being protected.”

Prosecutors also said that turning over secret filings would disclose targets of an ongoing grand jury investigation and might cause them to flee.

Last September, the 9th Circuit, which also received a secret prosecution filing, upheld Rafeedie’s decision to hold Zuno in custody without bail and to keep the informants’ identities confidential.

Later that month, Zuno was indicted for perjury after he appeared before a federal grand jury probing Camarena’s murder. Another federal judge in Los Angeles ordered Zuno released on $200,000 bail, over the strenuous protests of prosecutors, who also gave that judge four secret filings to review.

Zuno returned to his home in Mexico and he returned twice for hearings in the perjury case. When he arrived back in Los Angeles the second time in December, he was indicted on charges of helping plot Camarena’s abduction and murder. Later, the perjury charges were dropped by the government.

That same month, the U.S. attorney’s office made two secret filings with Judge Rafeedie.

Then, on Jan. 8, Rafeedie ordered prosecutors to seek his permission before filing any new in camera materials. But court records show that the U.S. attorney’s office has made four additional secret submissions since then without seeking the judge’s consent.

Zuno’s attorneys said those additional filings showed the prosecution had “blatantly disregarded” Rafeedie’s order. However, they also said the judge had not done anything about it.

The lawyers said it is particularly important that a defendant learn as early as possible who is making accusations against him in order to develop information that could impeach the witnesses or bolster the defense in other ways.

To date, prosecutors have turned over to Zuno’s lawyers 3,700 pages of documents from its investigation of the Camarena case. Zuno’s name “does not appear even once” in any of this material, so the basis of the government’s case against him must be contained in the secret filings, defense attorneys said in their motion.

They also cited a 1980 decision by the 9th Circuit Court of Appeals that was critical of the use of in camera filings: “Not only is it a gross breach of the appearance of justice when the defendant’s principal adversary is given private access to the ear of the court, it is a dangerous procedure.”

Zuno’s challenge is not the first time that the issue of in camera filings has arisen in cases involving Camarena’s murder.

Lawyers who represented three men convicted in federal court here in 1988 on charges stemming from the killing said they, too, objected to extensive confidential communications between the prosecution and Rafeedie in that trial. One of the lawyers, Don Randolph of Los Angeles, said those communications are among the grounds on which the convictions are being appealed.