Sunday, September 4, 2011
On Friday, U.S. District Court Judge Reggie Walton denied William Roger Clemens’ Motion to Prohibit Retrial and Dismiss the Indictment. If the New York Times is to be believed, Walton thinks that prosecutors “blatantly disregarded” his order barring testimony by Laura Pettitte. But the judge also ruled that “the current state of the law” prevents him from barring a second trial, despite the Constitution’s Double Jeopardy Clause. I respectfully disagree.
The leading case is Oregon v. Kennedy, decided by the U.S. Supreme Court in 1982. In his majority opinion in Oregon v. Kennedy, Justice Rehnquist held that when a defendant successfully moves for a mistrial the Double Jeopardy Clause will not prevent a retrial unless the prosecutorial conduct giving rise to the successful motion for mistrial was intended to provoke the defense into moving for mistrial. Got that?
Rehnquist pointed out that when a prosecutor goads the defendant into moving for a mistrial, “the defendant’s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances.” Rehnquist rejected a broader standard based on prosecutorial overreaching:
“The difficulty with the more general standards which would permit a broader exception than one merely based on intent is that they offer virtually no standards for their application. Every act on the part of a rational prosecutor during a trial is designed to ‘prejudice’ the defendant by placing before the judge or jury evidence leading to a finding of his guilt. Given the complexity of the rules of evidence, it will be a rare trial of any complexity in which some proffered evidence by the prosecutor or by the defendant's attorney will not be found objectionable by the trial court. Most such objections are undoubtedly curable by simply refusing to allow the proffered evidence to be admitted, or in the case of a particular line of inquiry taken by counsel with a witness, by an admonition to desist from a particular line of inquiry.”
In contrast, “a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.” Commentators and practitioners have not focused enough on this passage.
It is a commonplace in criminal law, both state and federal, that intent cannot always be established by direct evidence, but instead must often be inferred from circumstantial evidence. For example, the Third Circuit’s standard jury instruction on “Required State of Mind-Intentionally-Knowingly-Willfully” teaches that:
“Often the state of mind [intent, knowledge, willfulness, or recklessness] with which a person acts at any given time cannot be proved directly, because one cannot read another person’s mind and tell what he or she is thinking. However, (name’s) state of mind can be proved indirectly from the surrounding circumstances. Thus, to determine (name’s) state of mind (what (name) intended or knew) at a particular time, you may consider evidence about what (name) said, what (name) did and failed to do, how (name) acted, and all the other facts and circumstances shown by the evidence that may prove what was in (name's) mind at that time. It is entirely up to you to decide what the evidence presented during this trial proves, or fails to prove, about (name’s) state of mind.”
Every federal circuit, including the D.C. Circuit, has a similar instruction.
The Third Circuit instruction on “Intentionally” states that:
“The offense(s) of (state offense or offenses that include intentionally or with intent) charged in the indictment requires that the government prove that (name of defendant) acted “intentionally” [“with intent”] with respect to an (certain) element(s) of the offense(s). This means that the government must prove beyond a reasonable doubt either that (1) it was (name’s) conscious desire or purpose to act in a certain way or to cause a certain result, or that (2) (name) knew that (he) (she) was acting in that way or would be practically certain to cause that result.
In deciding whether (name) acted “intentionally” [“with intent”], you may consider evidence about what (name) said, what (name) did and failed to do, how (name) acted, and all the other facts and circumstances shown by the evidence that may prove what was in (name)’s mind at that time.”
Every federal circuit, including the D.C. Circuit, has a similar instruction.
In this regard, Justice Powell’s concurrence in Oregon v. Kennedy is also instructive. Powell noted that, because subjective intent is often unknowable, “a court - in considering a double jeopardy motion - should rely primarily upon the objective facts and circumstances of the particular case.” One of those objective facts and circumstances is whether there was a “sequence of overreaching” prior to the particular prosecutorial error which necessitated a mistrial.
Thus, Judge Walton, in determining whether the Government intended to provoke a mistrial was free under the law to fully examine all of the circumstances surrounding the Government’s violation of his order.
Every federal circuit also has a “Willful Blindness” instruction. The Third Circuit’s is typical. It states in part that:
“To find (name) guilty of (state the offense), you must find that the government proved beyond a reasonable doubt that (name) knew (state the fact or circumstance, knowledge of which is required for the offense charged). In this case, there is a question whether (name) knew (state the fact or circumstance, knowledge of which is required for the offense). When, as in this case, knowledge of a particular fact or circumstance is an essential part of the offense charged, the government may prove that (name) knew of that fact or circumstance if the evidence proves beyond a reasonable doubt that (name) deliberately closed (his) (her) eyes to what would otherwise have been obvious to (him) (her).
No one can avoid responsibility for a crime by deliberately ignoring what is obvious. Thus, you may find that (name) knew (state the fact or circumstance, knowledge of which is required for the offense charged) based on evidence which proves that: (1) (name) was aware of a high probability of this (fact) (circumstance), and (2) (name) consciously and deliberately tried to avoid learning about this (fact) (circumstance).”
This is also known as the “Ostrich Instruction.” A defendant cannot hide his head in the sand about the facts in front of him. Let’s apply the concept to baseball.
When a pitcher throws a brushback pitch to a batter’s head, intending to intimidate the batter, he “knows” there is a possibility that the batter will be hit and injured. When that same pitcher throws a 100 mile an hour brushback pitch to the batter’s head, he “knows” that if the batter is hit, serious injury may result. But when that same pitcher has terrible control problems, is in a bad mood, and throws a 100 mile an hour brushback pitch to the batter’s head, he “knows” there is a high probability that the batter will be hit by the pitch and seriously injured.
Judge Walton was also free to apply the willful blindness concept, regularly applied by prosecutors and courts to convict criminal defendants, to the Government’s actions in the Clemens case.
It was the Government’s playing of the Elijah Cummings videotape to the jury on July 14, 2011, that provoked Judge Walton’s wrath and the defense’s reluctant, but successful, mistrial motion. Representative Cummings, in the course of cross-examining Roger Clemens before Congress, repeatedly mentioned Laura Pettitte’s affidavit. But Judge Walton had ruled this affidavit to be inadmissible. By playing the Cummings tape, the Government effectively snuck the affidavit into evidence through the back door. In trying to justify its use of the Cummings videotape on July 14, the Government never once said that it had made a mistake. Instead, AUSA Durham argued that “[t]here was no intention to run afoul of any Court ruling,” that the defense had possessed the videotape for months, and that the tape was in fact admissible.
There is absolutely no question that the Government intended to play the Cummings videotape, despite the Court’s prior ruling regarding Laura Pettitte’s affidavit. The defense and several commentators have made this point and the record unequivocally supports it. Judge Walton agrees. The prosecutors were deliberately playing it as close to the line as they could, hoping that they could get away with the Cummings videotape. They were throwing a brushback pitch at 100 miles an hour, but they were not paying enough attention to the umpire behind the plate.
And this was not an isolated incident. In determining whether the prosecutors intended to provoke a mistrial motion we are entitled to look at all of the facts and circumstances, including whether there was a “sequence of overreaching,” whether the prosecutors were “acting in [a] way [that] would be practically certain to cause” a mistrial motion, and whether the prosecutors were willfully blind to the likelihood that their win-at-all-costs philosophy would result in a mistrial. The prosecutors knew they were up against two of the finest criminal defense attorneys in the country, Rusty Hardin and Michael Attanasio. The prosecutors were therefore on notice that any conduct in violation of the Court’s orders would not go unchallenged.
On the question of whether the prosecutor’s engaged in a “sequence of overreaching,” I believe that not enough detailed attention has been paid to the Government’s violation of a separate Court order during opening statements. Nor has enough attention been paid to the Government’s attempts to justify this additional violation.
Let us now pay some detailed attention to this separate violation.
When Roger Clemens’ attorneys looked at the Government’s witness list on June 10, 2011, they spotted the names of four men who were trainer Brian McNamee’s former clients. The potential witnesses were Andy Pettitte, Chuck Knoblauch, Mike Stanton, and Anthony Corso.
Eleven days later, Clemens filed Defendant’s Motion in Limine and Memorandum of Law (1 of 2) to Preclude Introduction of Other Witness Evidence Concerning Dealings and Discussions With Brian McNamee. In the introductory paragraph of his motion, Clemens attacked the prosecutorial strategy of guilt by association, noted that “[g]uilt under our system of government is personal” and that “inference[s] of guilt drawn by testimony regarding individuals other than defendant[s]” had been rejected by the D.C. Circuit, and sought “to preclude such improper evidence in all respects.”
Specifically, in the rest of his motion/memorandum, Clemens sought to exclude “evidence or argument that Brian McNamee provided or injected other witnesses with steroids or HGH” and “evidence or argument that Brian McNamee’s accounts of dealings with other witnesses are confirmed or consistent.”
Recognizing that “the evidence offered through Mr. Pettitte is so likely to be interrelated to the case against and in defense of Mr. Clemens that precluding it in its entirety would be impractical,” Clemens nevertheless sought to preclude the Government “from making improper argument that Brian McNamee provided or injected Andy Pettitte with HGH and told the truth about it.”
The Government vigorously opposed Clemens’ motion in an 11 page Opposition Brief. In footnote 5 of its brief, the Government stated that “[f]ormer players Pettitte, Knoblauch, Stanton, and Segui will also testify as to other relevant facts that defendant’s motion does not encompass. This includes but is not limited to: the reasons why players chose to use these drugs, and (2) team practices with respect to the dispensation of prescription drugs such as lidocaine and vitamin B12.”
This is an odd comment to hide in a footnote, particularly given Clemens’ stated desire to exclude guilt by association evidence “in all respects.”
Fast forward two weeks to the July 5, 2011, motions hearing. Judge Walton was obviously concerned about the prejudicial impact of testimony that McNamee had injected other players with illegal substances and told the truth about it. Stating his understanding that Clemens’ defense would be one of unknowing injection with such substances, Judge Walton wondered “how evidence that other individuals were getting these substances from Mr. McNamee and they knew they were getting, how that somehow could be imputed to Mr. Clemens. But I’ll hear from the government as to why this evidence is relevant, unless in some way the defense puts it in issue.”
After listening to arguments, the Court was unmoved. “I can understand why you’d want to do it, but my concern is that if his position is that yes, McNamee was giving me injections, but he was injecting me with what I thought were vitamins and other items that are not banned, the concern I would have is that if you bring in that evidence showing that these individuals were getting these substances from Mr. McNamee and they knew [what] they were getting, that the jury may say well, if they knew what they were getting from McNamee, then why wouldn’t Clemens also know that he was getting the same thing. And that doesn’t necessarily compute. That may not be true. And so, I think there is a significant potential for him being unduly prejudiced by that evidence coming in.”
Judge Walton agreed to have his law clerk look at a D.C. Circuit case that the Government mentioned in its oral presentation and said that he would come back to the issue. But the Government immediately started reiterating its position, arguing its right “to rebut any notion that Mr. Clemens somehow thought that what McNamee was giving him was B-12 when, in fact, it wasn’t. This is also a central issue of proof in the Government’s case.”
Judge Walton said, “Okay. I’ll look at the case. I’m just still having some real problems with this because I can see how even with a cautionary instruction, assuming I could craft one that would be intelligible to the jury, I could see how they could still potentially misuse that evidence. I mean, I don’t know. I mean, I use to get cortisone shots when I was playing football in college. And I had to rely upon what the trainer was giving me. And I would not want to be held responsible for having done something inappropriate based upon what that trainer was giving to other people. And that’s the concern that I have.”
The Court then moved onto other admissibility issues, including whether the Government could put on evidence that Andy Pettitte contemporaneously repeated his conversation with Clemens to his wife Laura Pettitte. The Court also ruled that this evidence was inadmissible, as long as Clemens was only arguing that Andy Pettitte misheard, rather than misremembered, the conversation with Clemens. If Andy Pettitte misheard Clemens admit to illegal steroid injections, his repetition of the conversation to Mrs. Pettitte does not rebut anything. The defense confirmed that this was its position.
Later the Court returned, as promised, to the issue of McNamee’s dealings with other players. “I fully appreciate that the jury is going to have to assess Mr. McNamee’s credibility, and that his credibility is going to be seriously attacked by the defense. But I don’t think, at least at this point, that the mere fact that they are going to seriously attack his credibility necessarily opens the door to bring in evidence regarding Mr. McNamee’s dealing with other players. Because as I say, my main concern is that if Mr. Clemens’ position, and I understand it is at least in part his position that he did not know what he was receiving, it seems to me that there’s a real danger, that the jury may say, well, if they all knew, and that’s especially I guess true in reference to players who are also on the same team, that why wouldn’t Mr. Clemens know? And I think that would be a problem, for them to in some way use the evidence regarding what he was doing with these other players to impute knowledge on the part [of] Mr. Clemens. But I’ll reserve a final ruling until I see what transpires during the trial. And if somehow I feel that the door has been opened, I may be inclined to change my position. But my tentative position is that the evidence is not going to come in.”
What happened next in the motions hearing is, to me, very important. The Court asked whether there were other matters to take up. Rusty Hardin said “I don’t believe so from the defense, Your Honor.” But the Government had something else to say.
Without specifically referencing footnote 5 of the Government’s Opposition Brief, AUSA Durham told the Court that “[t]he other players, as we point out in the motion, there are areas of testimony [that] are not the subject of the defense motion in limine that we set forth and proffer in our opposition pleading. I just want to make sure that I don’t run afoul of any of the Court’s ruling by mentioning that there were other players who may testify in this trial, who played for the Yankees during this time period.”
Judge Walton, clearly not remembering footnote 5, sought clarification: “That’s all you’re going to say?”
Durham responded: “Yes, pretty much. Yes.”
Hardin said: “No problem.”
Judge Walton said: “Okay. And other matters?”
And the motions hearing ended.
Three things should have been crystal clear after the motions hearing and the foregoing exchange.
1. The Government had lost two crucial evidentiary battles as a result of the defense motions in limine.
2. The Government would not be allowed to mention to the jury, without leave of Court, any drug use by other players who were Clemens’ contemporaries, particularly his Yankee contemporaries.
3. The Government would be allowed tell the jurors during opening statement that “there were other players who may testify in this trial who played for the Yankees during this time period.”
But that is all the Government would be allowed to say on this topic.
Fast forward eight days to opening statements on July 13, 2011.
AUSA Durham told the jury that four of the players named in the Mitchell Report “are willing to testify as witnesses in this trial. Three of those players…Mr. Pettitte, Chuck Knoblauch and Mike Stanton, these players all played for the New York Yankees in 2000 and 2001….Each of these players, Mr. Pettitte, Mr. Knoblauch and Mr. Stanton played for the New York Yankees in 2001 and 2001. And they’ll tell you, ladies and gentlemen, each one of them will tell you that they used the drug human growth hormone, this drug that’s injected into the abdomen with a small insulin needle. And they’ll tell you why they used it, and they used it to recover from injuries. They used it because there was a lot of pressure in Major League Baseball to play and perform. And at the high levels, there was great financial reward and great recognition.”
Defense counsel Hardin interrupted and asked to approach the bench. At the bench, Hardin reminded the Court of its ruling on the motion in limine.
AUSA Durham responded: “This is what I clarified with the Court, and I just want to make sure. When I stood at the plate, I said I want to make sure. I want to follow the Court’s ruling that I would refer to players, that players would testify as to why they used these substances.” This was, of course, a false statement. It may not have been intentionally false, but it was blatantly false. Durham continued, “I am not going to go into where they got them, how they got them or any of that. But I don’t believe this runs afoul at all of the Court’s ruling.”
Judge Walton said: “And that’s relevant for what purpose?”
Mr. Durham: “Why he would use these drugs. These are teammates of him. They play at the same time on the same team. It explains why in the world this man would choose to use these drugs.”
Mr. Hardin: “Not a one of them are going to say anything about Roger Clemens, even if it was allowed, using steroids. What they’re allowed to imply through this is that Roger Clemens must have used steroids because these players found it helped them. That’s incredibly irrelevant and prejudicial.”
Judge Walton, trusting the prosecutor and apparently having forgotten Durham’s precise words on July 5, said “I don’t doubt that you said what you said earlier, but I did not really rule ultimately on the issue as to whether this could come in under any circumstances. And I clearly had said it couldn’t come in for the purpose of suggesting that, because they knew what they were using, that Mr. Clemens would have known what he was using.” Walton told Durham “I have not given the leeway for this information to come in.” Walton instructed the jury to disregard Durham’s comments about other players using drugs.
The next day, after the Government played the Cummings videotape in violation of the Court’s order, Rusty Hardin reminded Judge Walton of this earlier violation:
“Well, let me mention, the problem we have is, is this is the second, so there must be a total misunderstanding on the government's part as to their obligations, because this happened during opening statement, too. I had to object during opening statement to a mentioning of other players. The Court ruled and reminded them that that was a violation of the motion in limine.”
AUSA Durham did not want to revisit that issue, but offered to get a transcript:
“When I asked the Court, I don't want to run afoul of the Court's ruling, can the government mention other players with respect to and in connection with why they used the drug as opposed to whom they got it from. There is no bad faith on the part of the government here in trying to prove this case.”
Once again, this was an inaccurate representation of what transpired during the motions hearing, but presumably Durham had not had an opportunity to review the motions hearing transcript.
Well after the mistrial, in its August 19, 2011, written response to Clemens’ motion to bar retrial on double jeopardy grounds, the Government again discussed its effort in the July 5 motions hearing to not “run afoul of any of the Court’s ruling.” But the Government did not quote in full, or in proper sequence, from AUSA Durham’s actual exchange with Hardin and the Court. Instead, the Government claimed that on July 5 it had “asked the Court for clarification of the scope of its tentative ruling,” and was clearly making “a reference to footnote five of the government’s opposition.” According to the Government, “defense counsel appeared to indicate that he had no objection to an opening statement reference to HGH abuse by other Major League players.”
This is a material misstatement of the record. And, unlike AUSA Durham’s mischaracterizations of the record in the heat of trial on July 13 and July 14, the Government had ample time--over a month--to carefully consider its words.
Judge Walton could have considered the Government’s continuing misrepresentation of the July 5 record in deciding whether the prosecutors intentionally provoked a mistrial. He could have considered all of the factors I have been discussing and fashioned an opinion with a good chance of surviving on appeal. After all, he does not believe that the seasoned prosecutors made a mistake. He believes that they deliberately violated his orders.
I do not profess to know exactly why Judge Walton ruled for the Government. By all accounts he is a fair, straightforward and intelligent jurist. [Full disclosure: I had a hearing in front of Judge Walton on Friday and did not receive the precise result I asked for.] Perhaps we will learn more if he issues a written opinion. I have no reason to think that his stated reason, as reported in the press, is not the real one.
Hardin and Attanasio are considering an interlocutory appeal. This would set up a difficult challenge. Perhaps they can argue that Judge Walton incorrectly thought his hands were tied, because he had no direct explicit proof of prosecutorial intent.
One thing is clear from Judge Walton’s comments during the motions hearing and from his actions during the first trial. He is determined to give Mr. Clemens a fair trial—to be, in the words of Chief Justice Roberts, an impartial umpire. And the Government will now be extremely limited in what it can put before the jury. Mr. Clemens has sought vindication, ever since he voluntary appeared before Congress to deny charges of illegal use of performance enhancing drugs. An acquittal by a jury of his peers is the most complete form of vindication that he will be able to achieve. Maybe he will get it, with Judge Walton behind the plate.