Monday, May 7, 2012
I'd say you had a pretty good week if you got a key government witness to agree there is a 50-50 chance he misheard or misunderstood a purportedly damning admission by your client. That's what happened last week (week one) in the Roger Clemens re-trial, through Mike Attanasio's cross of Andy Pettitte. This morning, team Clemens filed Defendant's Motion to Strike Portions of the Trial Testimony of Government Witness Andy Pettitte. The Motion is an excellent piece of work. The argument?
1. The threshold for establishing admissibility of a preliminary fact question under Federal Rule of Evidence 104 is preponderance of the evidence. Fifty-fifty doesn't cut it.
2. Under Federal Rule of Evidence 401, relevant evidence "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fifty-fifty doesn't cut it.
3. Even if relevant, the testimony's probative value is substantially outweighed, under Federal Rule of Evidence 403, by the "danger of unfair prejudice, confusion of the issues, or misleading the jury." This is particularly true in light of the Government's statement to the jury, during its opening, that Clemens told Pettitte "he had used human growth hormone and that it helped him with recovery." The real-life fifty-fifty version on the stand didn't cut it.
4. Judge Walton specifically warned the parties before trial about making promises they couldn't keep in opening statements. He said that if it occurred here he would "not hesitate to tell this jury that they must totally disregard any such statements of that nature. I'll specifically identify what those statements were and tell them there was no evidence to that effect, and therefore, they cannot consider that in deciding this case." Judge Walton should make good on his promise, because fifty-fifty doesn't cut it.
Team Clemens also noted that the government could have revisited the conversation during re-direct, but deliberately skirted the issue.
My prediction is that this motion will be granted in some form. It certainly doesn't mean that Clemens is out of the woods. Ted Stevens' outstanding trial team won several motions during trial and Judge Sullivan gave Stevens some very scathing anti-government jury instructions--to no avail. (Of course, in the Stevens case, the government was deliberately hiding important exculpatory material.) But such an instruction will undoubtedly greatly benefit Clemens. It will essentially knock-out a key portion of the government's case.
Kudos to the defense team for an outstanding cross and an excellent motion. One of the nice things about this trial is that co-counsel Attanasio is finally getting some of the national media attention he has long deserved.
Friday, May 4, 2012
Nobody messes with Judge Reggie Walton. Here is a great post from Mike Scarcella of BLT (Blog of Legal Times) on recent bench conferences in the Roger Clemens case. Defense attorney Mike Attanasio incited Walton's wrath this week when he ignored Walton's ruling and tried to go "beyond the scope of direct" during the cross-examination of Andy Pettitte.
According to Scarcella, Attansio was questioning Pettitte about a specific Clemens pitching performance that took place in 1999. Attansio wanted to delve into whether "Clemens was so depressed and beaten up then that he would start taking drugs to perform better." Prosecutor Steve Durham objected that this went beyond the scope of direct. Walton sustained the objection.
Attanasio then asked Pettitte whether he had ever seen Clemens "broken and beaten" after a game. This ticked Walton off: “I’m getting sick and tired of making rulings and counsel not listening to my rulings." Walton reminded Attanasio "that the defense does not have a right to build its case during the government’s pitch to jurors."
That's preposterous of course. Every good defense attorney tries to make his case during cross-examination, and Attanasio was allowed to ask other questions that technically went beyond the scope of direct. For example, Attanasio elicited Pettitte's key testimony that Clemens had never appeared to be pitching on steroids. I haven't read the transcripts yet, but it is unclear to me how far out of the strike zone the additional questioning strayed.
As any experienced litigator knows, courts are all over the map on the scope of cross-examination. Most federal judges allow a relatively expansive cross for reasons of judicial economy. Why make the defense call a witness to the stand in its own case, when you can save time by questioning the witness on cross? But a federal judge's ruling on whether to allow narrow or open-ended cross is virtually unassailable on appeal.
Attanasio did what most good defense attorneys would do in this situation. He ignored (sub silentio) a dubious ruling from Judge Walton and attempted to make the same point through a slightly altered question. That will work with many judges who aren't paying close attention, but it didn't phase Judge Walton.
Judge Walton has many fine qualities. He is intelligent, fair, and couragoeus. But he tends toward rigidity.
Wednesday, April 25, 2012
I expect that any day now one of my non-white-collar criminal clients will come to my office and ask me to incorporate him to protect him from future criminal liability. Of course, incorporation does not immunize an individual from criminal liability. Nor, generally, does it protect small corporations from prosecution.
However, it appears that just as massive corporations are "too big to fail," they are too big to prosecute. In the wake of the government's destruction of Arthur Andersen because of an ill-conceived, aggressive and ultimately unsuccessful indictment which caused the loss of thousands of jobs, DOJ has been highly reluctant to aggressively prosecute major corporations.
Although there are occasionally indictments of major corporations, most often these are disposed of by "deferred prosecutions," which are essentially delayed dismissals with financial penalties in numbers that are large in absolute terms but meager in comparison to the profits and assets of the corporation. To be sure, even when prosecuted to conviction, corporations do not go to jail and thus there may be little practical difference between a conviction of a corporation and a deferred prosecution. However, to the extent a goal of the criminal justice system is to achieve apparent fairness and equality, there is a genuine, if symbolic, reason for the prosecution of the large and powerful, whether they be individuals or corporations.
According to a thorough account in the New York Times this past Saturday, April 21, see here, Wal-Mart in Mexico, where the company has, according to the Times, one-fifth of its stores, engaged in a systemic countrywide scheme in which it spent millions of dollars to bribe hundreds of Mexican officials to gain favorable and expedited treatment and a competitive advantage. According to the Times, this conspiracy was not, as is often the case in corporate wrongdoing, the act of a rogue individual or group. Rather, it was orchestrated from the very top of the Wal-Mart Mexican hierarchy. Additionally, again according to the Times, when reports of this corruption reached Wal-Mart's U.S. headquarters, top executives took great pains to cover up the wrongdoing.
The alleged conspiracy, if the Times report is accurate, appears to be the kind of corporate crime, therefore, that deserves aggressive prosecution (not just an indictment and a deferred prosecution), especially if the government wants the Federal Corrupt Practices Act ("FCPA") to be taken seriously. Of course, there may be statute of limitations or other fact-finding or evidentiary problems involved in putting together a case involving facts from 2005, the year, according to the article, the bribe payments were made. It is far easier to write an article reporting corruption than to prove it under the rules of evidence beyond a reasonable doubt. It will be interesting to see what, if anything, DOJ does with respect to this matter.
Tuesday, February 21, 2012
[All of the facts in this post come from the 11th Circuit opinion in United States v. Ignasiak, publicly available on the 11th Circuit's website (here) or from PACER.]
Arthur Jordan used a counterfeit badge and posed as an on-duty U.S. Marshal in order to carry firearms onto commercial airplanes while on personal travel. He did this nine times. According to the United States Court of Appeals for the 11th Circuit, Jordan's "criminal conduct" resulted in "multiple violations" of 18 U.S.C. Sections 912 and 1001 and 49 U.S.C. Section 46505, and "could have been charged as felonies."
But Jordan wasn't even charged with a misdemeanor. He got pretrial diversion from the South Dakota U.S. Attorney's Office, paid $2,000.00, and agreed never to carry firearms on an airplane again, except while on official business.
Jordan is not your everyday citizen. He is none other than Dr. Arthur Jordan, who goes around the country testifying as an expert for the U.S. Government in Health Care Fraud/Controlled Substances Act prosecutions against pain management physicians. He charges $300 per hour and, during his November 2008 testimony in U.S. v. Ignasiak, claimed to have earned around $30,000.00 as a government expert up to that point in time. Dr. Jordan was the key government expert against Robert Ignasiak in the latter's criminal jury trial, testifying for almost three days. (Roy Black was lead defense counsel during the trial.)
But there's much more to the story. Given its reversal, and its finding that the evidence was sufficient, the 11th Circuit declined to address the other issues raised by Ignasiak on appeal--except for one.
You see, none of the Ignasiak defense attorneys knew during the trial about Dr. Jordan's "criminal conduct" or his South Dakota pretrial diversion agreement. Several months after the Ignasiak guilty verdicts, the government filed the Government's In Camera Notice to the Court ("Notice"). The Notice, and an accompanying affidavit, were filed under seal. This post-trial Notice revealed Dr. Jordan's conduct and his South Dakota pretrial diversion deal to Judge Lacey Collier and Robert Ignasiak's defense team for the first time. The government requested that the Notice be kept under seal, in order to protect Dr. Jordan's privacy interests.
In the Notice, the government also argued that its prior failure to disclose the Arthur Jordan impeachment material did not violate Brady/Giglio, because the Ignasiak prosecutor had not personally known about Dr. Jordan's conduct, or the South Dakota pretrial diversion agreement, during the Ignasiak trial.
Judge Collier summarily granted the government's request to seal the Notice, despite defense opposition. The defense filed a New Trial Motion based on the alleged Brady/Giglio violations. Much of that litigation was conducted under seal. A few documents are publicly available, but they are heavily redacted. The defense lost its New Trial Motion as well.
The 11th Circuit did not decide whether the government's failure to discover and disclose Dr. Jordan's conduct, before or during trial, violated Brady/Giglio. But it did order the government's Notice unsealed and, through its opinion, disclosed Dr. Jordan's "criminal conduct" and pretrial diversion deal to the bench and bar. This was an admirable public service.
The 11th Circuit was clearly displeased by DOJ's effort to shield Dr. Jordan. As the Court succinctly put it:
"Perhaps ironically, by arguing that there was no Brady violation in this case because the AUSA prosecuting Ignasiak was unaware of Dr. Jordan’s history, it is actually the government that most persuasively highlights the value in unsealing the Notice. Indeed, should the Notice remain sealed, the significant likelihood is that in the next CSA prosecution in which Dr. Jordan testifies as an expert, both the prosecuting AUSA and the defense counsel will again be unaware of the highly relevant impeachment evidence contained in the Notice. And in that case, as in this one, should the truth ever come to light, the government could again point to its own ignorance and claim immunity from Brady error. Stated this way, we would have expected the government to condemn, rather than condone, such a problematic outcome."
In light of the 11th Circuit's opinion, several questions present themselves.
1. Who Protected Jordan? In other words, why did he get what looks on its face like a very favorable pretrial diversion deal from the South Dakota U.S. Attorney's Office? Who approved the deal and who within DOJ was informed about it? How long did the diversionary period last? Was it unusually short and, if so, why?
2. Who Revealed or Failed to Reveal Jordan's Conduct and Pretrial Diversion Deal? The Ignasiak prosecution team, from the Northern District of Florida, purportedly did not know about Dr. Jordan's "criminal conduct" or his South Dakota pretrial diversion agreement until after trial. Why not? The South Dakota U.S. Attorney's Office is part of the DOJ and the U.S. Attorney network, and Dr. Jordan is fairly well known as a government expert in pain clinic cases. It is difficult to imagine that South Dakota prosecutors were not aware of Dr. Jordan's ongoing role as a government expert. Assuming that they were aware, why didn't this raise any red flags, and who, if anyone, made the decision to quarantine this obvious Brady/Giglio material? If this is a cover-up, how high did it go? Was Jordan's pretrial diversion completed before Ignasiak's trial? Was it still in force when Jordan traveled, as he surely must have, to Pensacola for trial prep? Wouldn't Jordan need permission from pretrial services in order to travel to Pensacola, and wouldn't he have to tell pretrial service the purpose of his trip? Did the South Dakota U.S. Attorney's Office know of the trip and its purpose? If so, why didn't it notify N.D. Florida?
3. Why Did N.D. Florida Try to Seal and Suppress Dr. Jordan's "Criminal Conduct" and Pretrial Diversion Deal? As the 11th Circuit correctly noted, the government's effort to seal its own Notice had the effect of shielding Dr. Jordan's misconduct from other federal prosecutorial offices. Even assuming, as the government argued in Ignasiak, that an AUSA in one federal district has no obligation to obtain Brady/Giglio from a fellow AUSA in another federal district, what possible justification is there for the active effort to suppress Brady/Giglio material that occurred post-trial in Ignasiak?
4. What Subsequent Prosecutions Have Been Sullied by the Ignasiak Brady/Giglio Suppression? Did the Florida AUSAs ask Dr. Jordan about any upcoming trials Jordan may have had on tap with other U.S. Attorney Offices? If so, did the N.D. Florida make an attempt to tell the other offices about Dr. Jordan? It unquestionably had an ethical duty to do so. What has been done since the Ignasiak opinion to look into this issue?
5. Does the DOJ Really Believe that Brady/Giglio Material Known Only to a Federal Prosecutor in South Dakota is not Brady/Giglio Material in any Other Federal District? What duty does DOJ impose upon its federal prosecutors to tell prosecutors in other federal districts about Brady/Giglio problems with testifying agents and expert witnesses? If there is no policy in this area, why not?
6. How Could This Happen? More to the point, how could this happen post-Stevens? The government filed its Notice in Ignasiak six months after DOJ moved to dismiss the Stevens Indictment with prejudice and six months after Judge Emmet Sullivan ordered his own investigation of Brady/Giglio violations. Apparently AG Holder's message fell on some deaf ears. And I guess the N.D. Florida never thought to re-examine its position, after the DOJ issued, to much fanfare, the Ogden Memo in early 2010. Even now, after the 11th Circuit's pointed comments, the government has not voluntarily moved to unseal the Notice, or the motions and responses from the New Trial Motion, in the Ignasiak case. Why not?
It is extremely difficult for me to believe that either AG Eric Holder or Assistant AG Lanny Breuer knew about the Arthur Jordan issue prior to last month's Ignasiak opinion. And therein lies the problem. Even an Attorney General and Criminal Division Chief publicly committed to rooting out Brady/Giglio abuses could not prevent the Arthur Jordan debacle.
What is the real lesson here? That prosecutors can't be trusted to make their own judgments about what is or is not exculpatory and material under Brady/Giglio. Disclosure must be the norm.
DOJ has done everything in its power to prevent meaningful statutory reform of Fed.R.Crim.App.16 and federal criminal discovery procedures. DOJ says that it can be trusted to prevent Brady/Giglio violations from occurring. The Ted Stevens prosecution is Exhibit 1 in the argument against DOJ. Now we have Exhibit 2. His name is Dr. Arthur Jordan.
Thursday, February 9, 2012
Here is Judge Emmet Sullivan's Memorandum Opinion ordering unredacted release of Hank Schuelke's Report on prosecutorial misconduct in the Ted Stevens prosecution. Any comments or objections to the report by the attorneys involved are due by March 8 and will be published along with the Report.
Thursday, December 1, 2011
"In this Court’s experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness.
"In this Court’s experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness.So it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court."
"Consequently, the Court throws out the convictions of Defendants Lindsey Manufacturing Company, Keith E. Lindsey and Steve K. Lee and dismisses the First Superseding Indictment."
Wednesday, November 30, 2011
Judge Emmet Sullivan's Order in relation to the Stevens case summarizing some of the findings of the special report by Hank Schuelke and William Shields was reported last week by my editor Ellen Podgor here and discussed in depth by my co-editor Solomon Wisenberg here. I add some thoughts on Brady violations in general.
First, as Mr. Wisenberg points out, few Brady violations are intentional. Although there are some rogue prosecutors who deliberately conceal what they know is information which would be beneficial to the defendant, the vast majority of Brady violators are well-meaning prosecutors who in their focus on their proof do not realize that certain information would be helpful to the defense.
Second, Brady is counterintuitive. Requiring a participant in any contest to provide information to his adversary which will decrease his chance of winning goes against the grain. Expecting a prosecutor who believes that such information is merely a means of enabling a guilty person to get off (since the material in question presumably has not changed the prosecutor's mind that the defendant is guilty beyond a reasonable doubt) to provide it to his opponent is even more problematical.
Third, Brady violations are not uncommon, although few are revealed. Since Brady violations are done in secret and the concealed evidence is unlikely ever to reach the light of day, most are undetectable. As Judge Sullivan's Order notes, many of the Brady violations in the Stevens case would never have been revealed but for the exhaustive investigation by the court's appointed investigators. And, this case, it should be remembered, involved a U.S. Senator represented by Brendan Sullivan, a superb, highly-respected and aggressive lawyer, and an outstanding law firm with considerable resources, not an overwhelmed court-appointed attorney with limited time and resources.
Fourth, as Mr. Wisenberg notes, prosecutors are rarely punished for Brady violations. Most judges either ignore the violations or gently chide the prosecutors. DOJ internal reviews of alleged prosecutorial misconduct are viewed by defense lawyers and many judges as whitewashes. Disciplinary committees historically have treated errant prosecutors gently in the few cases of prosecutorial misconduct of which they become aware, and prosecutions of prosecutors for obstruction of justice and the like for withholding evidence are virtually nonexistent.
Fifth, the legal standards for Brady disclosure are confused. Most prosecutors and judges think of Brady material as "exculpatory" material, that is, something that might have a significant impact on the determination of guilt, a standard that, to most prosecutors, eliminates all but a very few items of evidence. In fact, what should be disclosed is evidence "favorable" to the accused, a much broader category than "exculpatory." Additionally, many prosecutors believe that the standard used by reviewing courts to determine whether non-disclosure of Brady evidence requires reversal -- whether it is "material" -- is the proper standard to be used by a trial prosecutor in the initial disclose-or-not determination. "Materiality" in this context is essentially a "harmless error" standard of review used to decide whether the withheld evidence mandates reversal, not the standard to determine whether to disclose in the first instance. Just as a prosecutor's argument in summation may be improper, even if unlikely to result in reversal, concealment from the defense of favorable evidence is improper, even if not so serious that it later will be found "material" by an appellate court.
In sum, under current conditions, Brady just doesn't work. More explicit guidelines, as recently published by DOJ, will help, as would standing court orders making a violation contemptuous (as has seemingly not happened in Stevens) and stronger punishments for violations by judges, prosecutorial agencies, and disciplinary committees (and perhaps also a statute criminalizing deliberate and knowing Brady violations). But, in the end, the only real solution to Brady violations may just be, as Mr. Wisenberg suggests, open discovery in criminal cases.
Maybe FCPA isn't such a slam dunk after all if you take the government to trial. Bloomberg's Businessweek has the story here. The announcement was made in open court yesterday. A written opinion is due today. The Court is apparently relying on its supervisory power, so we can expect a vigorous government appeal. The ruling covers Defendants Lindsey Manufacturing, Keith Lindsey, and Steve Lee.
Wednesday, November 23, 2011
My colleague Ellen Podgor recently commented here on Judge Emmet Sullivan's 11-21-11 ORDER in In Re SPECIAL PROCEEDINGS, the ancillary proceedings initiated by Judge Sullivan to investigate the multiple Brady violations committed by DOJ prosecutors in U.S. v. Theodore Stevens. The ensuing investigation was conducted, on Judge Sullivan's behalf, by veteran DC lawyers Hank Schuelke and William Shields, who have now issued a report that is, I hope, only temporarily under seal.
It is obvious from reading his Order that Judge Sullivan is still outraged. That's a good thing. Until enough federal judges get hopping mad about systemic DOJ Brady violations, we will have no real legislative discovery reform at the federal level.
In addition to the points highlighted by Professor Podgor, Judge Sullivan's Order notes the following findings and conclusions by Schuelke and Shields:
1. "[T]he investigation and prosecution of Stevens were 'permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness.'"
2. "[A]t least some of the concealment was willful and intentional, and related to many of the issues raised by the defense during the course of the Stevens trial."
3. Schuelke and Shields "found evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed--at least to the Court and to the public--but for their exhaustive investigation."
4. Schuelke does not recommend criminal contempt proceedings, because "in order to prove criminal contempt beyond a reasonable doubt under 18 U.S.C. [Section] 401 (3), the contemnor must disobey an order that is sufficiently 'clear and unequivocal at the time it is issued'... [but] no such Order existed in this case. Rather, the Court accepted the repeated representations of the subject prosecutors that they were familiar with their discovery obligations, were complying with those obligations, and were proceeding in good faith."
5. "Mr. Schuelke also notes that '[i]t should go without saying that neither Judge Sullivan, nor any District Judge, should have to order the Government to comply with its constitutional obligations, let alone that he should feel compelled to craft such an order with a view toward a criminal contempt prosecution, anticipating its willful violation.'"
6. "Mr. Schuelke 'offers no opinion as to whether a prosecution for Obstruction of Justice under 18 U.S.C. [Section] 1503 might lie against one or more of the subject attorneys and might meet the standard enunciated in 9-27.220 of the Principles of Federal Prosecution.'"
It is clear that most or all of this Report is going to be publicly released. It will be interesting to compare it to DOJ OPR's report, assuming that DOJ decides to release it. Two attorneys for two of the prosecutors under scrutiny have already announced that OPR's report clears their respective clients. DOJ has a long history of ignoring the critical comments of federal judges. The latest example of this took place in reference to the prosecution of former Blackwater employees. Despite Judge Ricardo Urbina's scathing factual findings regarding the conduct and credibility of the original set of prosecutors, they were treated to a laudatory/fawning DOJ press release upon reassignment. Urbina, like Sullivan, is one of the most respected federal judges in the country and his factual findings were not questioned or disputed on appeal.
Some final thoughts.
1. For every Emmet Sullivan (or Ricardo Urbina or Howard Matz) there are 10 federal judges who unquestioningly accept the Government's representations regarding Brady issues, irrespective of non-frivolous matters brought to their attention by the defense bar.
2. The defense attorney has an obligation to ferret out Brady issues through the filing of detailed, fact-specific Brady motions closely tied to the formal allegations in the case.
3. We must rapidly move toward open discovery in the federal criminal system, with appropriate safeguards in place to protect witnesses where necessary. The presumption, however, must always be in favor of open discovery. Many states have gone this route without any disastrous consequences. It is appalling that civil litigants have substantially more access to discovery at the federal level than do people who are literally fighting for their liberty.
4. In the meantime, federal prosecutors must be relieved of the burden of determining whether exculpatory information is material. DOJ already recommends this in the Ogden Memo, but it should go one step further and require it. The rule should be: IF IT HURTS MY CASE IN ANY WAY, TURN IT OVER! When a man judges himself, the verdict is always in his favor. When a federal prosecutor, in the heat of trial or pretrial battle, is deciding whether exculpatory evidence is material, the verdict will too often be that it is not. Let's end this invitation to injustice.
5. Of course, federal prosecutors do not think like criminal defense attorneys. That's okay. We don't want them to! But this is the very reason why they cannot ultimately be trusted to make the determination of what is or is not exculpatory. The competent defense attorney headed to trial or sentencing is constantly thinking about anything that will help the defense. Prosecutors are not trained or inclined to do this. Even when they are trying to fulllfil their Brady obligations, AND THE VAST MAJORITY OF FEDERAL PROSECUTORS ARE TRYING TO DO THIS, they cannot be trusted to spot the issues. This difference in outlook/inclination/thought processes really comes to the fore during the period leading up to sentencing hearings, when the prosecutor looks at the defense attorney like a deer in the headlights when reminded of his/her obligation to provide any and all mitigating evidence!
6. Please. Let's have no more: "We understand our Brady obligations and intend to abide by them." Congress should pass a statute requiring some form of detention for any prosecutor who utters this bromide.
November 23, 2011 in Contempt, Corruption, Current Affairs, Government Reports, Investigations, Judicial Opinions, Legal Ethics, Media, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (4) | TrackBack (0)
Wednesday, October 19, 2011
Surprise, surprise, surprise. According to Joe Palazzolo at WSJ's Law Blog, DOJ's Office of Professional Responsibility has cleared Brenda Morris of any wrongdoing whatsoever in the Ted Stevens case. The story is here.
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)
Tuesday, August 30, 2011
Here is William Roger Clemens' Reply Memorandum supporting his Motion to Prohibit Retrial and Dismiss the Indictment, which was filed on Friday. Like the original defense Motion and the Government's Response, it is well written. I was surprised, however, by the defense's failure to spend more time on a particularly disingenous aspect of the Government's Response, relating to the prosecution's violation of a court order during opening argument. I'll have some commentary on this issue in a few days.
Monday, June 20, 2011
Corporate Counsel's Sue Reisinger reports here that Rod Rosenstein, the universally respected U.S. Attorney for the District of Maryland, refused to sign his name on either Lauren Stevens indictment, because he did not believe that the evidence was sufficient to support a conviction. The case was prosecuted by District of Massachusetts AUSAs, but venue was found in Maryland. The typical practice is for the U.S. Attorney in the district of prosecution to sign all indictments issued by the grand juries in his/her district, or at least to have his/her signature block signed by an AUSA. This did not happen in the Stevens case. Rosenstein, a former colleague of mine, is the quintessence of straight-arrowhood. His failure, literally, to sign-off on the Stevens charges surely sent an important signal to Judge Roger Titus, who threw the case out under Rule 29. Let me give you an idea of how well respected this Jimmy Stewart, Boy Scout, is. Rosenstein, the Republican appointee in an overwhelmingly Democratic state with two Democratic U.S. Senators, has yet to be replaced, even though a Democrat has held the White House for 2 and one-half years. The story of the Stevens prosecution gets curiouser and curiouser.
Sue Reisinger at Corporate Counsel has this fascinating piece titled, Why Didn't the Maryland U.S. Attorney Sign the Lauren Stevens Indictment? But there are some additional questions that need answers. Why if a top US Attorney is not willing to sign the Indictment did senior officials at DOJ's criminal division not intercede? And if they did re-examine the case, did they authorize proceeding with this case? (For background on the dismissal of this case by the judge, see here).
There is something to be said about an indictment coming from the district bringing the charges - it's an aspect of venue. Prosecutors from that district get to look at the case in comparison to other matters being prosecuted in that district, in order to determine if this merits expending funds for a prosecution. Having outsiders brought in to consider a prosecution may be warranted, especially when the prosecutor has a conflict. But in any event, someone at the top needs to examine whether the prosecution is warranted.
Sunday, May 22, 2011
Obstruction of justice is a common offense used by prosecutors in white collar matters. I call it, along with perjury and false statements, "short-cut"offenses - as they usually allow prosecutors to obtain a conviction fairly easily without needing to present a lengthy document case - and white collar cases can be very document intense. But lately, the government has not been so fortunate in its use of the short-cut approach. Because even if proceeding with a short-cut crime, you still need to prove the case. More importantly, you need to have a case with sufficient evidence of all the elements of the crime.
The Eleventh Circuit in U.S. v. Dennis Friske, a.k.a. Denny, ruled that the "government failed to introduce sufficient evidence to permit the jury to find that he knew the existence of the forfeiture proceeding." Bottom line - the case was remanded for the district court to enter an acquittal.
Although this is not a white collar case, it is an important decision for white collar practitioners as it emphasizes the need to focus on whether the government has the sufficient nexus for an obstruction crime. The court in Friske cites to the Supreme Court decisions in Aguilar and Arthur Andersen in holding that the "government was required to prove that Friske knew of, or at least foresaw, the forfeiture proceeding." Merely acting suspiciously will not be enough.
See also Paul Kish, Federal Criminal Lawyer Blog, Atlanta-based Federal Court of Appeals Reverses Obstruction Conviction Because No Evidence Defendant Aware of the Proceeding He Supposedly Obstructed
(esp)(w/ a hat tip to Linda Friedman Ramirez)
Saturday, May 14, 2011
Here is yesterday's opinion from the D.C.Circuit in United States v. David Safavian. The former Jack Abramoff friend and colleague was convicted upon retrial, after the appellate court threw out the original convictions on various grounds. The primary contention in the latest appeal was vindictive prosecution, as new charges were added after the remand. The Court held that the trial court did not abuse its discretion in finding that the government added the new charges to counter Safavian's literal truth defense. Safavian's alleged felonious conduct was incredibly petty and minor in nature. The prosecution was a tremendous waste of government resources.
Tuesday, May 3, 2011
Here is a case of infinitely greater importance than the Rajaratnam insider trading farce, but one that is largely getting the silent treatment from our financial press. I haven't seen a real news story on the Lauren Stevens trial since the first day of trial. This is pathetic. One of the most thoughtful blogosphere commentaries comes here from my friend David Douglas at Shook, Hardy & Bacon. David says that the prosecution represents a "gotcha" game, because the government did not set out clear markers regarding what it would and would not tolerate from in-house counsel responding to FDA document requests.
But that is clearly not the story told by the United States in the charging instrument. The Indictment quotes a 10-29-02 letter from Stevens to the FDA in which she confirms an earlier pledge of GSK's best efforts to obtain and provide "materials and documents presented at GSK-sponsored promotional programs, even if not created by, or under the custody or control of GSK." (That sounds like a pretty clear marker to me.) Stevens then allegedly told the FDA that GSK's production was complete, although she had failed to produce numerous presentation slides containing "incriminating evidence of potential off-label promotion by GSK."
According to one of the defense's responsive pleadings, Stevens and her team, "reached a consensus decision not to produce the presentations immediately, but instead to seek a meeting with the FDA at which GSK would discuss the presentations." Ms. Stevens tried several times to set up such a meeting, but the FDA did not respond positiviely, "and the anticipated meeting never occurred." That isn't exactly a compelling defense.
My friend, DC criminal defense attorney Eugene Gorokhov, of Burnham & Gorokhov, attended the first day of testimony. Eugene's eyewitness account follows:
Saturday, April 23, 2011
The federal criminal trial involving former GlaxoSmithKline ("GSK") Vice President and Associate General Counsel Lauren Stevens commences this Tuesday in Greenbelt, Maryland. When I first read the Indictment, without knowing anything else about the facts, it struck me that the government may have overcharged. That is probably not a good sign for the feds, since the Stevens charging instrument is a classic one-sided speaking Indictment that seeks to put the United States' case in the best possible light.
The crux of the prosecution theory is that Stevens, who headed up a team of inside and outside GSK counsel responding to an FDA inquiry, withheld information about off-label marketing of Wellbutrin. Specifically, Stevens allegedly learned that several doctors, paid by GSK and speaking at GSK-sponsored events, promoted off-label (weight-loss) use of the drug. GSK's responses were part of a voluntary production pursuant to a written request from the FDA's Division of Drug Marketing, Advertising, and Communications ("DDMAC"). Stevens allegedly agreed, orally and in writing, to provide DDMA with "materials and documents presented at GSK-sponsored promotional programs, even if not created by, or under the custody or control of GSK." But, according to the Indictment, Stevens knowingly failed to produce numerous off-label promotional and presentation materials, provided to GSK by the doctors in question, with intent to obstruct an FDA proceeding. Rather than focusing entirely or primarily on this failure to produce, the Indictment lumps in many other broad statements contained in Stevens' various cover letters to the government. It seems to me that at least some of these statements are open to differing interpretations. Perhaps the government should have more narrowly honed in on the failure to turn over the presentation/promotional materials.
Part of Stevens' defense will entail her purported reliance on the advice of outside counsel in sending GSK's written responses to the FDA. The original Indictment was thrown out by Judge Roger Titus, because federal prosecutors incorrectly instructed the grand jury that reliance on the advice of counsel is only an affirmative defense. In fact, good faith reliance on advice of counsel negates the specific intent element under the federal obstruction and false statement statutes at issue in the trial.
This prosecution should strike terror into the hearts of inside and outside counsel throughout corporate America. Of particular note is that the FDA inquiry into off-label Wellbutrin marketing did not involve a compelled production and was not even quasi-criminal in nature.
Attached for our readers' benefit are some documents setting out the government's case and what are likely to be key portions of Ms. Stevens' defense.
April 23, 2011 in Arthur Andersen, Corruption, Current Affairs, Defense Counsel, Fraud, Grand Jury, Judicial Opinions, Legal Ethics, Obstruction, Prosecutions, Statutes | Permalink | Comments (0) | TrackBack (0)
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.