Saturday, July 16, 2011
The transcript can be found on Talkleft here. Now Talkleft, along with the Daily Beast here and Houston Clearthinkers here present one view to consider in the key issue that remains to be decided by the court. On the other side you see Tom Schoenberg and Ann Woolner here who say that it is "likely" to be a new trial. The title to Del Quetin Wilber's story in the Washington Post shows his cards -Veteran prosecutors’ rookie mistake, no-nonsense judge lead to Clemens mistrial.A more neutral stance is taken by TJQuinn at ESPN here. But perhaps this is just a question that is too close to call, even with the replay.
You have one prior call by the judge of a violation which goes against the government. (The defense can use this to argue that they were on notice of the judge's ruling). You also have a clear cut present violation of his order and no mea culpa on the spot - although the prosecutor later says that "there was no intention to run afoul of any Court ruling." But the prosecutor also argues that the exhibits were admitted into trial without objection. The prosecutor even says that "this video clip and this transcript was turned over in early May." (but wouldn't that have been before the judge's order? )
On the other hand, the defense did not initially object to the admission of the tape and only raises the issue when the judge initiates a discussion of the issue. But then again - the defense did object for the record and move for a mistrial after the judge raises the issue.
But there's another subsidiary issue here. Did the government not turn over the evidence (a supposedly redacted video) in sufficient time for defense counsel to realize that it had not been redacted? One question is whether counsel in fact traded exhibits in sufficient time prior to trial that the defense could have realized that it was not a redacted tape/transcript and could have objected prior to it even coming in front of the jury. On the other hand, should defense counsel have had to verify everything that was supposed to be done by the court's order. In the transcript the defense says
"...that when the Court makes a ruling on a motion in limine, it's incumbent on the prosecutor to then redact or alter his exhibits, not hand them to counsel and tell us, I'm admitting 3-A through 3-H and expect counsel for the defense to read them in 30 seconds and then move them in. They should have been changed."
Does this justify a failure to immediately object. And did counsel have the exhibits in advance and just expect that the prosecution would do what the court had instructed.
So one goes in circles until the judge says "stop" and gives us a ruling. And that perhaps resolves this case. Although, as previously noted, it could go into extra innings if the judge rules against the defense (see here).
I keep wondering if we had better and more advanced (earlier) discovery to the defense if this would have presented as much of an issue.
But I also continue to say to the government that even if this is inadvertent, lets call an end to this game. We have significant crime and limited funds, lets use it wisely.
Addendum - Check out Maureen Dowd's op ed in the NYTimes, Why Are Prosecutors Striking Out?