Friday, January 20, 2012
Yesterday's New York Times has an extremely lengthy but disappointingly unilluminating article about the firing by the Penn State Board of Trustees of legendary football coach Joe Paterno (and also Penn State president Graham Spanier) for purportedly failing to take adequate action after being informed that former coach Jerry Sandusky had molested a boy in a Penn State locker room shower (discussed earlier here, here). The article reports that the Board telephoned Paterno and said, "The Board of Trustees has determined effective immediately you are no longer the football coach." Paterno immediately hung up. Shortly thereafter, his wife called the Board and said, "After 61 years he deserved better."
I agree with Mrs. Paterno. In the months since the Penn State grand jury report became public, I have seen nothing that to me indicates that Paterno acted improperly by promptly reporting the alleged incident to his superiors, even if not to law enforcement.
The lesson of Paterno's firing appears to be that, even if not required by statute or internal rule, one in authority in a corporation, government agency, institution of learning, or similar entity, should protect himself by reporting any tenable allegation of sexual abuse, whether or not substantiated and whether or not he believes it, to law enforcement. While such a rule might protect the reporter from termination, it might lead to a heyday for defamation lawyers, as well as severe harm to innocent people.
Wednesday, December 7, 2011
As noted by co-blogger Solomon Wisenberg here, former Illinois Governor Rod Blagojevich received a sentence of 14 years.(see also FBI Press Release here). He is not the first governor from Illinois to be convicted and sentenced. History includes Otto Kerner (sentenced to three years), Dan Walker (sentenced to seven years - crimes unrelated to his office), and George Ryan (sentenced to 6 1/2 years). (see here) Two questions to ask here: 1) Are white collar sentences really getting lower? 2) Would his sentence be so high if he had quietly plead?
Tuesday, November 15, 2011
I have a nagging feeling that Penn State football ex-coach Joe Paterno may have lost the game on a bad call by the referee(s). Paterno, although not charged criminally, has been fired and vilified for what many suspect was his involvement in a cover-up to protect Penn State and its football program. While Paterno might arguably be faulted for a moral lapse for not personally reporting the allegation directly to public authorities, he did, promptly and probably accurately, report what he had been told to his administrative higher-ups, including the official in charge of the university police, one of the law enforcement agencies with jurisdiction over on-campus crime.
The basic facts as regards Paterno, according to the Pennsylvania grand jury report (see here), are as follows: A 28-year old Penn State graduate assistant (known to be Mike McQueary) in March 2002 observed Jerry Sandusky, a former Penn State assistant coach who had access to its football facilities, in a shower room subjecting a boy estimated to be 10 years old to anal intercourse. The following day, a Saturday, McQueary reported to Paterno "what he had seen." The next day, a Sunday, according to Paterno he called to his home Tim Curley, the university athletic director and his immediate nominal supervisor, and told Curley that McQueary had seen Sandusky "fondling or doing something of a sexual nature to a young boy." Subsequently, at a meeting with Gary Schultz, the Penn State senior vice president who oversaw the campus police, Paterno reported (according to Schultz) that Sandusky had engaged in "disturbing" and "inappropriate" conduct in the shower with a young boy.
Approximately one and one half weeks after the shower incident, in a meeting with Curley and Schultz, McQueary testified, he told them he had observed Sandusky having anal sex with a boy. Paterno was not present at that meeting.
Schultz, who was aware of an allegation against Sandusky in 1998 that was investigated with no resulting arrest, did not report the incident to the police. Curley and Schultz reported the incident to university now ex-president Graham Spanier as Sandusky "horsing around" in the shower with a "younger" child. Spanier testified that, as reported to him, the incident was not of a "sexual nature," and he made no report to authorities.
Curley was indicted for making a materially false statement under oath for denying that McQueary (presumably in the meeting not attended by Paterno) had told him that Sandusky had engaged "in sexual conduct or anal sex." Schultz was indicted for making a materially false statement under oath that the allegations made by the graduate assistant were "not that serious" and that he and Curley "had no indication that a crime had occurred."
Both Curley and Schultz were also charged with the then "summary offense" (less serious than a misdemeanor) of failure to report suspected child abuse. The applicable Pennsylvania statute (since amended), according to the grand jury report, mandated reporting by "the person in charge of the school or institution" to the Department of Public Welfare. Presumably that "person in charge" was ex-president Spanier, and Curley and Schultz, it seems, were charged as persons whose alleged playing down of the incident caused Spanier not to make a report.
The criminal case against Curley and Schultz, and the moral case against Paterno, is based to a considerable extent on the accuracy of the un-cross-examined testimony about an incident 9 years ago by McQueary, whom the grand jury, according to the report, found "extremely credible." It is far from clear exactly what McQueary told Paterno. Indeed, the grand jury report, which otherwise details what McQueary reported to Curley and Schultz with some specificity, describes what McQueary told Paterno only in very broad strokes -- "what he had seen." Paterno in a recent statement claimed McQueary did not mention the "very specific actions." Thus, it appears questionable whether McQueary had reported to Paterno that Sandusky and the child had engaged in anal sex. Accordingly, when Paterno reported to Curley that he heard Sandusky was "fondling or doing something of a sexual nature," he may well not have been watering down McQueary's report.
Indeed, Paterno is likely the major corroborative witness in the prosecution case against Curley and Schultz. (The boy, it appears, had not yet been identified.) The report states that Schultz and Curley "were notified by two different Penn State employees of the alleged sexual exploitation," those witnesses apparently being McQueary and Paterno. Paterno, Pennsylvania Attorney General Linda Kelly has announced, is not a criminal target.
The public, including me, sometimes feels some satisfaction when it learns of the fall of the rich and famous and the sports figures whom we believe get privileged treatment, and sometimes jumps to hasty conclusions of guilt which turn out to be wrong -- witness the Duke lacrosse players and probably Strauss-Kahn cases. The grand jury report, most likely written by the prosecution, even while presenting the prosecution case without any challenge by the defense, does not convince me that Paterno did anything wrong -- criminally, civilly or morally.
It may well be that it will ultimately be revealed that Paterno deliberately minimized Sandusky's reported conduct -- and participated in a cover-up -- or that his failure to assume the responsibility to report was a grievous error. The grand jury report did not concern moral guilt. And perhaps the prosecutors went out of their way not to criticize Paterno, who, it appears, will be a key witness for them at trial.
Perhaps Paterno acted or failed to act to avoid embarrassment to the university, the football program or himself and/or to protect a colleague from arrest and prosecution, or both. Perhaps he chose not to go directly to the police or welfare agency for the same or similar reasons. Paterno, after all, as a coach no doubt believes that "the team" comes first. He is, as Duke basketball coach Mike Krzyzewski has intimated, also a creature of a different generation -- a generation which believed strongly in personal loyalty and was reluctant to "name names."
The grand jury report itself, however, does not make, and does not support, an allegation that Paterno deliberately participated in a cover-up.
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.
Friday, September 2, 2011
CNN has the story here. Judge Reggie Walton apparently blasted prosecutors, accusing them of deliberately violating his rulings during the truncated first trial. But Judge Walton believes that governing law prevents him from barring retrial on Double Jeopardy grounds. The leading Supreme Court case is Oregon v. Kennedy, 459 U.S. 812 (1982), which holds that a mistrial granted upon the request of a defendant, even if necessitated by government misconduct, only bars retrial on Double Jeopardy grounds if the prosecution intended to goad the defendant into moving for a mistrial.
September 2, 2011 in Celebrities, Current Affairs, Defense Counsel, Investigations, Judicial Opinions, Legal Ethics, News, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (1) | TrackBack (0)
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?
Thursday, July 14, 2011
Clearly the first question that will need to be answered is whether Roger Clemens can be retried. As noted here, double jeopardy will be the source of the controversy. The defense will likely argue that they had no choice but to ask for a mistrial and were provoked by the prosecutorial misconduct into taking this course. In contrast, the prosecution may resort to an argument that the conduct was inadvertent and that a retrial will not jeopardize Clemens. See Del Quentin Wilber, Washington Post, Roger Clemens perjury trial ends in mistrial after prosecution error
Prosecutors enter the next inning with two strikes against them - they had not one, but two instances where the judge needed to reign them in for not adhering to his rulings. If they get a third strike they are out.
On the other hand, if the defense loses the double jeopardy motion, there is the possibility that they will seek to take this issue up on an interlocatory appeal. This means we are into extra inning as a higher court is asked to review the double jeopardy ruling.
And the equally significant issue is what about the collateral consequences that continue to remain in question. That being, does Roger Clemens join the folks in the Hall of Fame?
What continues to bother me is whether the government should be playing this game. Should our precious taxpayer's dollars be used on such a case?
I must respectfully disagree with my colleague. (see here)
The judge appears to me to have jumped the gun. The defense, shown the videotape ahead of time, made no motion to redact. It didn’t object when it was shown to the jury. Apparently, the defense didn’t see it as harmful. Most likely, as Clemens said before Congress, the defense will agree that Pettite (Clemens’ good friend) was honest but argue that he was mistaken about what Clemens said (and I wouldn’t be surprised if Pettite admits he might have misunderstood Clemens), and thus the hearsay evidence as to what Pettite told his wife didn’t bother the defense.
Perjury cases, especially those involving investigations and grand jury proceedings, often include hearsay in questions: "Mr. Jones testified as to x; do you agree, Mr. Witness?" And, a curative instruction that the fact that a question assumed something happened is no evidence that it did happen is considered sufficient.
To be sure, this instance is somewhat different since the judge had previously told the prosecutor that Mrs. Pettite’s proposed testimony was inadmissible. And, probably most importantly, the judge was irked by the prosecutor’s opening that mentioned that Clemens’ teammates used steroids in seeming disregard of his ruling that such testimony was inadmissible – to me, apparently a much more blatant error.
I am happy to see a judge assert his authority and strongly react to a prosecutor’s disregard of his rulings. Most do it too gently. I do think, however, based on what I know at this time, that the judge may have overreacted.
Since the defense apparently moved for a mistrial and since it is unlikely that the defense will be able to demonstrate that the prosecutorial misconduct was designed to force the defense to do so, I doubt that double jeopardy will lie. Thus, at the end of the day – or the summer – Clemens may not really benefit, as Ellen says. And besides the additional cost and loss of a possibly favorable jury Ellen mentions, there is a psychological cost to a defendant, even a Texas tough guy like Roger Clemens, to get ready again to defend himself.
Of course, even assuming that Clemens did lie, I have mixed thoughts about whether this prosecution should have been brought in the first place. Perhaps we will discuss that later.
Addendum - A later press report here indicates that Judge Walton specifically instructed the prosecutors to eliminate mention of Mrs. Pettite's statements in the videotape. If so, the prosecutor's misconduct , however inadvertent, is more egregious and the judge's mistrial declaration more justifiable than I had believed based on early press reports, although I still think that the error could have been cured, and the prosecutor adequately "punished," by a strong curative instruction. Nonetheless, perhaps I, and not Judge Walton, jumped the gun. (lsg)
Judge Reggie Walton, nominated to the federal bench by President George W. Bush, just tossed out for today (mistrial) the Roger Clemens case. Hon. Walton had previously been appointed an Associate Judge of the Superior Court of the District of Columbia by President Ronald Reagan and later George H. W. Bush. He has sat on several high profile cases and been tough. For example, he was the judge that gave a sentence to Scooter Libby of 30 months in federal prison and a fine of US$250,000, a sentence on which Libby was later granted clemency.(see here) This is not the first case that prosecutors have had issues on with regard to abiding by the rules (e.g.,Ted Stevens discovery fiasco here). Several thoughts:
- Some will argue that Judge Walton did what needed to be done. After all, one can't erase from the minds of jurors inadmissible evidence of this magnitude. This is a he said -he said case and the veracity of a key witness will be crucial in this trial. An inadmissible compromise of this evidence could unfairly slant the case against the defendant. Others will take the opposite position.
- Judges make tough calls and it is easy to call something "harmless error" and hope that there is later overwhelming evidence that will support that position. But that isn't the right way to judge the case - it needs to be examined at the specific point in time when the violation occurs, as was done by Judge Walton.
- This is not necessarily a "win" for the defense. Clemens, if paying his lawyers by the hour (more than likely), could have additional attorney fees to contend with. Not to mention that the defense seemed to like this jury - and there is no assurance that if this case is retried they will have as favorable a jury.
- Prosecutors need to be careful. They guard our most important rights.
- A key issue that will be up to bat next is whether Clemens can be retried. The defense will likely argue that the jury was sworn and double jeopardy bars a retrial. The prosecution will argue that trial is permitted and that what happened was inadvertant (see LA Times here). Key issues here may be whether the defense asked for the mistrial and whether the prosecutorial conduct goaded the defense into having to ask for a mistrial (if in fact they even did). The leading Supreme Court decision that will be examined is Oregon v. Kennedy, 456 U.S. 667 (1982). One case interpreting Kennedy stated:
"[I]n Oregon v. Kennedy, the Supreme Court created an exception to this rule when it held that the Double Jeopardy Clause does bar retrial in the limited situation where the government engages in prosecutorial misconduct which gives rise to a successful motion for mistrial, and such misconduct 'was intended to provoke the defendant into moving for a mistrial.'"U.S. v. Doyle, 121 F.3d 1078 (7th Cir. 1997).
- The more important question, however, is whether such a case is worth expending our precious tax dollars. Hopefully prosecutors will carefully consider this question.
Thursday, June 16, 2011
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Twitter, Facebook & Google in the Courtroom: High Profile Defense in Real Time,” Thursday, June 16, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
The seminar opened with a discussion of the intersection between the internet (especially so-called “social media”) and the courtroom. The discussion was moderated by Gail Shifman, and the panel included Leslie R. Caldwell, Rusty Hardin, Dennis P. Riordan, and Allen J. Ruby.
The panel started by discussing cases with intense media scrutiny. High profile cases can arise due to the notoriety of the client, as was the case with Mr. Ruby’s former client Barry Bonds. But as Ms. Shifman noted, any kind of case or defendant can become notorious, as the glare of the media spotlight can be prompted by the facts of the case. The skills discussed can be required by cases in any criminal defense practice.
Mr. Hardin stressed determining early in the case to what extent the client’s reputation in the community is especially important, i.e., a celebrity or politician, and if so, react more proactively in media response. He stressed that the storyline of the case for the media will be set very early, perhaps in the first 36 hours, and will be repeated as the media updates the story.
Mr. Ruby spoke about a client’s concerns when under the spotlight: a strategy that repairs damage to reputation, to the extent possible. The internet has changed the game in many ways, but one is that it never forgets: every news story remains preserved for future searches, making “weathering the storm” less viable of a strategy than in years past.
Mr. Riordan discussed picking potential media outlets to suit your strategy: not every client and case will benefit from a discussion with Nancy Grace or her ilk, but some will. Different kinds of print media and bloggers are well suited to other kinds of cases.
Multiple panelists referenced the Duke rape case as one of the finest examples of excellence in media strategy. The choice of media, themes and messengers were all lauded.
Where reporters are pressing attorneys for comments, but public comments would not be beneficial (i.e., are part of the media strategy), off-the-record or background comments to the press may be useful, either to “hold them at bay” or to begin to influence the media coverage of a case. Where attorneys are gagged not by strategy, but by court order, motions can be drafted to convey the client’s position.
Another point stressed by multiple panelists was that the jury will remember what the lawyers say, and therefore attorneys should be careful before they make specific factual assertions in the press.
The panel discussion turned to specific social media issues. Use of social media research on witnesses or jurors was discussed, and it was noted that the use of third persons to surreptitiously access Facebook pages has been repeatedly characterized as unethical in numerous bar opinions.
Jury control in the age of social media and internet saturation was discussed. All panelists agreed that ordinary jury admonitions on these topics are seemingly “not processed” by jurors: it is simply unfathomable to not use the internet. Suggestions included requesting Facebook and Twitter information from prospective jurors (perhaps being given only to the court), or requesting the strongest possible judicial warnings to jurors.
Monday, June 6, 2011
A key problem when a DC Prosecution team is sent in to investigate and perhaps indict on conduct, is that they examine the conduct out of the context of the typical case seen in the local U.S. Attorneys' Office. They don't see the run-of-the-mill drug, immigration, or fraud case that typically comes through the U.S. Attorneys' Office. They become champions of a single or multiple case that they investigate, and with a single lens proceed or not proceed with their cause.
One has to wonder if this may be playing a part in the John Edwards prosecution. Mike Scarcella, over at the BLT Blog, notes here that the Public Integrity prosecutors are teaming up with some local prosecutors in this case. But it seems according to his blog entry that "a former chairman of the Federal Election Commission," is saying that the alleged activity is not criminal - and is not even a civil violation.
Whether the prosecutors, or Edwards and his defense team and others, are correct on whether this is a crime or even civil violation, is only half the problem. The other half is why are five lawyers from the department of justice working on an alleged election violation case. There is some real crime out there - even some real white collar crimes like identity theft and credit card fraud. Wouldn't our tax dollars be better spent on this?
The United States Supreme Court denied certiorari in the Wesley Snipes case (for background see here). His Petition to the highest court had raised questions regarding proof of venue in failure to file criminal tax cases. The next possible step would be for him to file a Motion to Vacate under 28 U.S.C. 2255.
See Order - Download Snipes
Friday, June 3, 2011
According to a DOJ Press Release, it's a 6-count indictment "for allegedly participating in a scheme to violate federal campaign finance laws." "The indictment, returned in the Middle District of North Carolina, charges . . . . one count of conspiracy to violate the federal campaign finance laws and to make false statements to the Federal Election Commission (FEC); four counts of accepting and receiving illegal campaign contributions from two donors in 2007 and 2008; and one count of concealing those illegal donations from the FEC." The press release states:
"According to the indictment, while a candidate for President of the United States, Edwards conspired with other individuals to accept and receive campaign contributions in excess of limits imposed by the Federal Election Act in an effort to protect and advance his candidacy from disclosure of an ongoing extra-marital affair and the resulting pregnancy. The indictment alleges that between 2007 and 2008, Edwards accepted and received more than $900,000 as part of this effort."
1) This is a technical case - reporting requirement - is it really necessary to have 6 counts? Did the DOJ include conspiracy in the hopes that they could secure a plea or alternatively if going to trial - get the jury to at least compromise by convicting on one count?
2) The affair will likely not play well with a jury. But on the other hand, isn't he needed now as a father?
3) Should this be criminal? Even if he improperly handled his campaign finances - which we do not know at this point - couldn't this be more appropriately handled via a civil action that would recover the money with penalties. Do we really need to clog up our criminal dockets with this kind of case.
Thursday, June 2, 2011
Dominique Strauss-Kahn is not accused of a white-collar crime, but he is a prototypical white-collar defendant – important, rich, and well-connected.
Strauss-Kahn, a French citizen accused of attempted rape and other crimes, was denied bail at his arraignment by a New York City lower court judge. A major justification was that France (like Germany, China, Japan, and many other nations) will not extradite its nationals. Subsequently, Strauss-Kahn’s experienced and able attorneys, desperate to get him released, proposed a highly onerous bail package, which a higher court judge accepted over the prosecutor’s strenuous objection. That bail package consists of a $1 million cash bond, an additional $5 million bond secured by a home owned by Strauss-Kahn’s wife, home confinement in New York City with an ankle bracelet, inside and outside video cameras, and even a 24/7 armed guard (Why armed? To shoot him if he tries to escape? To prevent the French foreign legion from freeing him?). These security measures reportedly will cost $200,000 a month. Strauss-Kahn, like all persons confined at home pre-trial, will receive no jail credit for his period of house arrest.
One wonders whether Strauss-Kahn’s bail conditions will become a prototype for bail conditions for major white-collar defendants, at least those with foreign or multi-national citizenship (an increasing number with the expansion of both the global economy and prosecutorial jurisdictional reach). The setting of bail is perhaps the most unguided and unpredictable of judicial decisions. Judges have wide discretion, amorphous standards, and, at least initially, generally little information about the case and the defendant. It is to be expected that judges will look for similar cases or similar defendants for a model. And, as recent history has shown, the most aggressive and/or harsh prosecutorial practices employed in the prosecution of violent and drug crimes (lengthy sentences, seizure of assets, restriction of counsel fees, eavesdropping and the like) soon work their way into the area of white-collar prosecution. If the Strauss-Kahn bail conditions become a standard, we can expect severe and restrictive home confinement bail conditions for white-collar defendants.
Monday, April 18, 2011
I was annoyed by the result in Skilling—that the unquestionable honest-services error was “harmless” beyond a reasonable doubt. But at the time I couldn’t articulate exactly why. After the Bonds verdict, I can. In short, the Bonds verdict illustrates the silliness of the conclusion in Skilling that appellate courts can and should sit as the 13th, 14th, and 15th jurors, then use a cold record to speak for the first 12 jurors while pretending appellate courts have crystal balls that make this okay.
Compare the two cases. Skilling’s trial was infected by honest-services error: in the indictment; in the evidence; in the argument; and in the instructions. Kicking a door cracked open by the Supreme Court in Pulido, the Fifth Circuit swept this under the rug—finding harmlessness—by pretending it could satisfactorily predict that the jury would have convicted on all counts even absent the error. To be sure, this put the nail in the coffin for the Yates standard of review, which said that when multiple theories are charged and instructed and one is impermissible, reversal usually is automatic because it is “impossible to tell” whether the jury relied on the impermissible theory. The Yates standard respected the constitutional right to an impartial jury of one’s peers (which appellate courts concerned with finality and efficiency certainly are not); it recognized the limitations of an appellate court’s ability to predict the past under changed circumstances; and it acknowledged that juries are composed of human beings (not robots) who can be and often are influenced by intangibles not apparent in a paper record.
The Bonds verdict illustrates why eradicating the Yates standard was a bad idea—and indeed leads to a standard that infringes the right to an impartial jury of one’s peers. Bonds was charged with repeatedly lying to a grand jury, and obstruction of justice essentially based on repeatedly lying to that grand jury. With a proper indictment and charge, the impartial jury of Bonds’ peers hung on whether Bonds lied to the grand jury, but agreed that he obstructed by lying to the grand jury. There are hyper-technical legal ways to attempt to explain this—but in reality (where jurors live), the verdict makes little sense. And surely Bonds’ attorneys will file a motion challenging the sole conviction on this basis.
But more importantly to me, Bonds illustrates what was right with Yates and what is wrong with Skilling. Appellate court’s aren’t very good at predicting the past under changed circumstances. I’d venture to guess that if the Fifth Circuit judges who decided Skilling had placed bets on the Bonds verdict, they’d have batted 0 for 3 predicting hung counts on lying but conviction on obstruction based on lying.
I hope the defense bar won’t give up on the Yates standard.
Wednesday, April 13, 2011
Maura Dolan, LATimes, Barry Bonds Convicted of Obstruction of Justice in Steroids Case
Ben Forer, ABC News, Barry Bonds Convicted of Obstruction of Justice, but Jury Hung on Other Charges
Fox News, Bonds guilty of obstruction of justice
Juliet Macur, NYTimes, Bonds Guilty of Obstruction of Justice
Laird Harrison & Dan Levine, Reuters, U.S. jury finds Barry Bonds guilty on one count
Alan Duke, CNN, Bonds convicted of obstruction of justice
Why is it that the headlines tend to focus on the conviction and not the counts that did not result in a conviction (although it is noticed that ABC News did not do this). Was this long investigation and trial worth it? Is this how our tax dollars should be spent?
For background see here.
Sunday, March 6, 2011
Actor Wesley Snipes has filed his cert petition in the Supreme Court. The two questions presented are:
1. Is an accused person deprived of the right under Article III and the Sixth Amendment to be tried only by a jury of the community where venue is proper, when factual questions determinative of whether venue has been correctly laid are determined solely by a jury selected in the place challenged by the defendant as incorrect?
2. Where venue is a contested factual issue in a criminal trial, does the government bear a burden of proof beyond a reasonable doubt or only by a preponderance of the evidence?
Petition - Download WTS cert final 022811
Thursday, March 3, 2011
This afternoon breakout session on public corrruption was moderated by Joshua R. Hochberg (McKenna, Long & Aldridge).
Jack Smith, Chief of the Public Integrity Section of the Criminal Division of the Department of Justice,spoke about how his office was moving cases along. He stressed the importance of maintaining the deadlines that are established. He also stated he has not found a problem finding statutes to use when bringing state and local corruption cases post the Supreme Court's modification of 1346. He said that other statutes are available to bring conflict of interest cases.
Robert M. Cary, a partner in the Washington, D.C., office of Williams & Connolly LLP, noted the lack of transparency in discovery. Until there is an enforceable rule, it will be a problem.
Laura A. Miller, Nixon Peabody LLP, said that "successful representation is when my name and my client's name does not appear in the press."
Patrick M. Collins, Perkins Coie LLP questioned why the government can't go the extra mile and have open file discovery.
The panel discussed the Speech & Debate Clause and how it can affect a case. They also looked at discovery issues - Laura Miller noted the lack of uniformity on discovery issues. She mentioned how in the "rocket docket" they receive Jencks material the Friday before trial. Jack Smith said that if it is close - turn it over.Jack Smith said they sometimes he will highlight documents for the defense. He recognized his duty to go through documents and find Brady material. Laura Miller noted that we should all work together to manage discovery. A final topic discussed was venue.
(esp)(blogging from San Diego)
Saturday, January 15, 2011
In commenting here Wednesday about former Travis County District Attorney Ronnie Earle's shameful money laundering prosecution of Tom DeLay, I noted that:
"The election code conspiracy charge [against DeLay] was almost immediately thrown out because there was no such crime in existence in Texas, as Earle should have known, and as the state’s highest criminal court later confirmed."
R. K. Weaver sent in a comment disagreeing with my analysis. According to Weaver:
"While it is true that there is no express 'conspiracy' provision in the Election Code, there is a general 'conspiracy' provision in the Penal Code which, on its face, and historically was considered to apply to all crimes in Texas. The Texas Court of Criminal Appeals, an elected body that is entirely occupied by Republicans, held for the first time in the history of Texas law, and contrary to abundant precedent, that this provision was limited to Penal Code crimes and was not applicable to the thousands of crimes that exist outside the Penal Code. That decision is generally considered by Texas lawyers to be absurd on its face and blatantly political. Unfortunately, it is also not terribly uncommon. There is a good reason that this court is referred to as 'the clowns on the Colorado.'" [emphasis added].
"When Earle indicted DeLay for conspiracy to violate the criminal provisions of the Election Code he was acting on established and well known Texas legal principals. DeLay's victory before the Court of Criminal Appeals was more about the political landscape in Texas than about the state of the law. I anticipate that when the current case gets before that court they will once again carve a 'DeLay exception 'to the law." [emphasis added].
Weaver is mistaken.
Title 4, Section 15.02 of the Texas Penal Code is the general criminal conspiracy statute. In 1977, long before Tom DeLay's rise to prominence, the Texas Court of Criminal Appeals, the highest court in Texas authorized to rule on criminal cases, held in Baker v. State, 547 S.W.2d 627 (Tex.Cr.App.1977), that Section 15.02 (the general conspiracy statute) could not be applied to a criminal offense defined by another law (that is, defined by a law located outside of the Penal Code) unless the other law explicitly referenced the Penal Code. The non-Penal Code offense at issue in Baker was the Texas Controlled Substances Act. Baker followed a similar holding in Moore v. State, 540 S.W.2d 140 (Tex.Cr.App. 1977), which had found Section 15.01 of the Penal Code, the general attempt statute, inapplicable to the Controlled Substances Act. Both rulings were based on a strict reading of Penal Code Section 1.03(b) which stated in part that “[t]he provisions of Titles 1, 2 and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise.” Since the conspiracy and attempt statutes were contained in Title 4, they could not apply to the Controlled Substances Act, the Court of Criminal Appeals reasoned, unless the Controlled Substances Act provided otherwise. The Controlled Substances Act did not provide otherwise, and did not contain its own attempt or conspiracy provisions. (The Texas Legislature later amended the Controlled Substances Act and it now expressly references Title 4 Penal Code offenses.) Both Baker and Moore were written by Tom G. Davis, a widely respected mainstream jurist. Judge Davis was a Democrat, as were all of the judges on the Court of Criminal Appeals at the time. In reversing Baker’s conviction and ordering the prosecution dismissed, Davis ruled that “[t]he complaint and information in the instant case do not allege an offense against the laws of this state."
Baker was still the law in Texas in 2005, when Earle brought his indictment against DeLay, and had been the law for 28 years. The pertinent portions of the conspiracy statute (Section 15.02) and of Section 1.03(b) remained the same. Earle’s original indictment of Tom DeLay charged that DeLay conspired in October of 2002 to violate the Texas Election Code. The Election Code is not a part of the Penal Code. In 2002, the Election Code did not contain a conspiracy provision or reference or incorporate Section 15.02. In other words, under authority of Baker and Moore, one could not conspire to violate the Election Code. The Election Code was amended, effective September 1, 2003, to permit application of Title 4 offenses, including the Section 15.02 conspiracy statute. But the amended version could not be applied to DeLay’s alleged conduct without violating Ex Post Facto principles. Ergo, Earle’s original indictment of DeLay did not, in the words of Tom G. Davis, “allege an offense against the laws of this state.”
According to a story in the Washington Post, Earle did not learn that there might be a problem with the original charge until his assistants told him about it, shortly after the indictment was returned. How sad. The Penal Code went into effect in 1973. The Election Code was enacted in 1975. Earle was elected Travis County District Attorney in 1976. Baker was decided in 1977. DeLay was indicted in 2005. When Earle found out about his mistake, he did not drop the Election Code conspiracy charge, which would have been the right thing to do. He re-indicted DeLay, using a new grand jury under dubious circumstances, but kept the Election Code conspiracy charge in the indictment. The trial court properly threw it out. The Court of Criminal Appeals affirmed in a 5-4 opinion.
Wednesday, January 12, 2011
The Washington Post reports here on the three year prison sentence handed down Monday to former House Majority Leader Tom DeLay by Texas state judge Pat Priest. DeLay was found guilty last November by an Austin jury of money laundering and conspiracy to commit money laundering under Texas criminal statutes.
The prosecution of DeLay by Travis County District Attorney Ronnie Earle and his successor has been nothing less than a travesty of justice. This is really not about Tom Delay. You can love him or you can hate him. It is instead about our collective glee whenever a person of an opposing ideology gets indicted.
Earle originally indicted DeLay for conspiracy to commit money laundering and conspiracy to violate the state election code. The election code conspiracy charge was almost immediately thrown out because there was no such crime in existence in Texas, as Earle should have known, and as the state’s highest criminal court later confirmed. The money laundering charge, and the conspiracy charge on which it is bottomed, should have never been brought either. Here’s why.
Delay's alleged laundering activity was accomplished through the writing of checks. DeLay was accused and convicted of knowingly conducting, supervising, and facilitating a transaction involving the "proceeds" of criminal activity in violation of the state money laundering statute, Texas Penal Code Section 34.02. In 2002, the year of the alleged offense, Section 34.01 of the Penal Code provided that "‘Proceeds’ meant "funds acquired or derived directly or indirectly from, produced through, or realized through an act." Section 34.01 defined "funds" as follows.
(A) coin or paper money of the United States or any other country that is designated as legal tender and that circulates and is customarily used and accepted as a medium of exchange in the country of issue;
(B) United States silver certificates, United States Treasury notes, and Federal Reserve System notes; and
(C) official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign country and foreign bank drafts."
So, in 2002 the "proceeds" of criminal activity meant "funds" acquired, derived, produced or realized through an act. "Funds" in turn included: coin or paper money designated as legal tender, circulating, and used as a medium of exchange; United States silver certificates, United States Treasury notes, and Federal Reserve System notes; and, official foreign bank notes used and accepted as a medium of exchange in a foreign country, and foreign bank drafts. Most conspicuously, "funds" did not include checks. This was no accident. The final version of the 1993 money laundering statute was far narrower than the draft first introduced in the Texas House of Representatives. The initial draft prohibited the knowing facilitation of a transaction involving "property" that was the "proceeds" of criminal activity. Property was defined broadly to cover tangible or intangible personal property as well as "a document, including money, that represents or embodies anything of value."
I am aware of no reported cases under the original Texas money laundering statute, prior to DeLay’s indictment, in which the proceeds of criminal activity were identified as checks. In the vast majority of the cases, the laundered proceeds consisted of currency. There were no reported cases even discussing whether a check could constitute laundered funds. The reason for this is obvious. Virtually no prosecutor in Texas thought that checks were "funds" under the old money laundering statute.
In 2005, the Texas Legislature amended the money laundering statute and broadened the definition of "funds" to include "currency or its equivalent including an electronic fund, personal check, bank check, traveler’s check, money order, bearer negotiable instrument, bearer investment security, bearer security, or certificate of stock in a form that allows title to pass on delivery." The House Research Organization’s analysis of the amendment stated that it would "broaden the definition of ‘funds’ to include money other than cash." The analysis also notes, in the "Supporters Say" section, that "[u]nder current law, prosecutors may not prosecute offenders for money-laundering if the offender received a form of money other than cash, such as checks or money orders. This is inadequate as it prevents prosecution under this statute in an array of cases." The new bill "would fix this problem by covering money received in a variety of forms other than cash." It gets even worse. Members of Travis County District Attorney Ronnie Earle’s own staff helped in the drafting of the 2005 amendment!
Of course DeLay could not be prosecuted under the 2005 version of the statute, for conduct that allegedly occurred in 2002, without violating the Constitution’s ex post facto clause. But that sort of problem did not bother Earle. He simply used the 2002 version, even though nobody thought back then that "laundering" via checks constituted laundering under Section 34.02.
The case is now headed for the higher courts. Here’s hoping that one of them does the right thing.