In the wake of a judge's rulings here last week, a trial that promised to be the first public examination of charges the government of Libya hired U.S. Army Special Forces veterans to assassinate opponents abroad has turned into a routine felony case.
Prosecutors allege former Green Beret Eugene A. Tafoya, 45, was a mercenary hired by former CIA agent Edwin P. Wilson to kill Faisal Zagallai, 35, a leader of Libyan dissidents in the United States who survived a shooting.
Tafoya admits shooting Zagallai twice in the head, but says it was in self-defense. He says he was working for the CIA when he went to Zagallai's apartment to warn him to stop his political activities. The CIA denies Tafoya worked for the agency.
As a result of the rulings by Larimer County District Judge J. Robert Miller, the jurors will not hear much of the evidence linking Tafoya to Wilson.
Miller ruled the prosecution could not present the following:
A purported hit list seized from Tafoya's home in Truth or Consequences, N.M., last April. Prosecutors said the list contained names, addresses and habits of persons "all of whom have had a falling out" with Wilson.
Chemical "delay pencils" used to ignite explosives and what police described as "a recipe for making firebombs."
A tape seized from Tafoya's car of a telephone conversation between Tafoya and James Clinton Dean of Fayetteville, N.C., also a retired member of the U.S. Special Forces who police said was an employe of Wilson. On the tape, Tafoya solicits work as a "hit man," prosecutors alleged.
On the tape Tafoya also claimed credit for the 1979 firebombing of a car belonging to Robert Manina, a Canadian who investigators say had a dispute with Wilson. Miller ruled that these items, seized at Tafoya's home, were not directly relevant to the shooting of Zagallai.
Evidence of what prosecutors call a "death decree" issued in February, 1980, by Col. Muammar Qaddafi, Libya's leader.
Because of the rulings, prosecutors also decided not to call as a witness Kevin Mulcahy, a former analyst for the CIA who says he worked for Wilson and reported his activities in Libya to the agency, and Luke Thompson, another former Green Beret who says he recruited the original contingent of ex-Special Forces personnel to work for Wilson in 1976.
Despite an order not to discuss details of the case publicly, Fort Collins police Det. Ray Martinez told reporters Friday Miller's rulings made it difficult to prove Tafoya's connection to Wilson and the Libyan regime.
But Chief Deputy District Attorney Larry Abrahamson termed the decision not to call Mulcahy and Thompson "a shift in strategy."
"We just didn't think their testimony would be that valuable to us at this time," Abrahamson said.
The prosecution has put before the jury the testimony of an FBI agent who warned Zagallai in March, 1980, of danger.
Zagallai himself took the stand last week to describe his activities in organizing Libyan students in the United States to oppose Qaddafi. After the FBI warning, Zagallai said, he bought a 9-mm automatic pistol as a precaution.
On Oct. 13, 1980, he said, a woman called his apartment offering to set up a job interview for him with a recruiter for U.S. companies doing business in the Near East. Although prosecutors claim to have identified the woman, they have not indicted her or produced her testimony.
Zagallai testified that Tafoya came to his apartment as scheduled the night of Oct. 14, 1980, nervous and smelling of alcohol.
After 15 minutes of awkward conversation, Zagallai said, Tafoya "mumbled something," stood up and tried to hit him. Then he allegedly pulled a gun and fired, hitting Zagallai in the face. After a struggle, Tafoya allegedly shot Zagallai again in the head. Zagallai testified Tafoya then fled as Zagallai lay bleeding.
One bullet severed the optic nerve, blinding Zagallai in the right eye. The other is still in his head.
Three witnesses testified last week they thought they heard three shots during Zagallai and Tafoya's struggle.
The defense claimed Tafoya shot Zagallai in self-defense only after Zagallai pulled his own gun from beneath a couch.
Under cross-examination by Tafoya's attorney, Walter Gerash, Zagallai admitted he had tucked a weapon under the cushion of the couch but denied pulling it out.
Martinez acknowledged he returned Zagallai's weapon without having had it tested for fingerprints. Martinez also said he had found no evidence that Tafoya behaved surreptitiously before shooting Zagallai.
Gerash pointed out that Tafoya had made no attempt to disguise himself or a trail of credit card receipts and phone calls to and from the scene of the shooting-- "hardly the modus operandi of a professional assassin."
Miller did allow the prosecution to present passports seized from Tafoya's home that show Tafoya traveled three times to Libya before and once after the shooting. Mulcahy was expected to testify that Tafoya stayed at Wilson's farm outside London last January.
Although Tafoya deposited more than $8,000 in his bank account on his return, the judge ruled Martinez could not tell the jury that Tafoya had admitted after his arrest the money was payment "for the action on Faisal Zagallai." Nor will the jury hear Tafoya's statement to Martinez that he is an associate of Wilson.