Monday, November 13, 2017
Andrew McCarthy at National Review Online compares the aggressiveness of Special Counsel Bob Mueller's Russia collusion investigation to the disgraceful kid gloves DOJ-FBI treatment of Mrs. Clinton and her email server. He is right on all counts, but this is not Mueller's problem. Mueller is doing exactly what one would expect of a Special Counsel. History teaches us that a Special or Independent Counsel will get rolled if he does not establish, unequivocally and from the start, that he will not be trifled with, obstructed, or lied to. I'm not aware of anything that Mueller has done to date that is outside ethical boundaries. The real outrage, as I have said many times before, is that a Special Counsel was not appointed to investigate Mrs. Clinton. The governing federal regulation plainly called for it. Let's review.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
In Mrs. Clinton's case, the President's former Secretary of State, and the leading Democratic Party candidate for President, was credibly accused of mishandling classified documents on a private unauthorized email server and the President himself had communicated with her through that server. Even worse, during the investigation, the President improperly interfered by publicly declaring, on two separate occasions, that Mrs. Clinton did not intentionally engage in wrongdoing and did not harm national security. It is easy to imagine the furor that would have ensued if a Republican President had engaged in such conduct. The pressure to appoint a Special Counsel would have been relentless. It is easy to imagine, because that is exactly what happened with respect to President Trump.
So conservatives are understandably (and rightfully) outraged at the double standard, but, as with so much else, President Trump has primarily himself to blame. When you fire the FBI Director who is investigating members of your administration for unlawful collusion with Russia, and immediately brag to the Russian Ambassador that you fired him in order to get the Russia collusion investigation behind you, you are going to get a Special Counsel. It is yet another example of how President Trump, a political genius with a profound ignorance of basic American civics and governing norms, has stumbled into problem after problem. Kudos to Ty Cobb for limiting the damage for now.
None of this is Mueller's fault. He is doing the job we expect a competent Special Counsel to do.
Friday, March 4, 2016
New England Patriot quarterback Tom Brady did not get the reception he wanted at the oral argument of the appeal of the National Football League (NFL) of a district court decision overturning his four-game suspension in the so-called Deflategate case. Brady has been accused of conspiring with Patriot employees to deflate footballs so that they were easier for him to throw in a game in cold weather. The appellate court spent a considerable amount of time questioning Brady's counsel about Brady's destruction of his cellphone shortly before he was to appear before NFL investigator Ted Wells.
In my view the evidence concerning whether the footballs were deflated was equivocal and, even if they were deflated, the evidence that Brady was knowingly involved was largely speculative, and in total, absent an inference of wrongdoing from the unjustified destruction of evidence, probably not sufficient to meet even the minimal 51-49 "more probable than not" standard used in the NFL and most other arbitrations. Evidence of the suspiciously timed destruction of the cellphone, and the lack of a convincing justification for it, however, for me pushes the ball over the 50-yard line and may be the linchpin of an appellate decision upholding the suspension. As Judge Barrington Parker stated at oral argument, "The cellphone issue raised the stakes. Took it from air in a football to compromising a procedure that the commissioner convened." He asked Brady's counsel,"Why couldn't an adjudicator take an inference from destroying a cellphone?," then stated that Brady's explanation - that he regularly destroyed cellphones for privacy reasons - "made no sense whatsoever."
Courts are understandably especially sensitive (sometimes too sensitive and too punitive, in my view) to acts like perjury or destruction of evidence which obstruct investigations or prosecutions. Our justice system relies, at least theoretically, on the basic (although somewhat erroneous) principle that, at least generally, witnesses will not violate the oath to tell the truth. It is therefore no great surprise that the court focussed on Brady's destruction of evidence and his purportedly lying about it. Indeed, Judge Parker appeared to accept that even if Brady had not been involved in tampering with the footballs, his destruction of evidence would justify Goodell's decision. "Let's suppose a mistake was made and the footballs weren't deflated, and then a star player lies in his testimony and destroyed his phone. An adjudicator might conclude the phone had incriminating evidence. Why couldn't the commissioner suspend Brady for that conduct alone?"
Of course, it would be rather perverse if Brady's suspension were upheld when in fact he had actually not been involved in deflating footballs and had destroyed his cellphone as an excuse for not producing it and lied about it for reasons unrelated to the deflating issue, such as that the phone contained wholly unrelated embarrassing information or that he possesses an Apple-like principled view of privacy rights. It calls to mind Martha Stewart, who was convicted and jailed for lying to federal agents and prosecutors in a proffer session even though the underlying insider trading allegation about which she was questioned, was not prosecuted. On the other hand, it would not be perverse if in fact the destroyed cellphone did contain incriminating conversations.
Sometimes a client under investigation asks his lawyer what the client should do with incriminating evidence he possesses. As much as the lawyer in his heart may want the evidence to disappear, he cannot ethically or legally advise the client to conceal the evidence. (The specific advice will vary depending on the facts and circumstances.) The lawyer should frankly explain his ethical and legal obligations. However, generally the client doesn't give a hoot about them. The lawyer should explain that destruction, tampering and concealment of evidence, if discovered by the prosecutor, will undoubtedly eliminate the possibility of non-prosecution, lessen the possibility of a favorable plea deal, strengthen the prosecution's case at trial, and, if there is a conviction, undoubtedly cause a more severe sentence. Just as lawyers sometimes invoke the Stewart case to caution about the danger of voluntary interviews with prosecutors, so might they invoke the Brady case to caution about the danger of destruction of evidence.
The Brady case highlights the danger of destruction of evidence and lying to investigators.
Tuesday, July 14, 2015
Ellen Podgor and I have just released a new article discussing the complexities of defining the term “white collar crime.” The ability to define and identify white collar offenses is vital, as it allows one to track, among other things, the number of these cases prosecuted each year, the frequency with which particular types of charges are brought in these matters, and the sentences imposed on those convicted. This new article begins with a brief historical overview of the term “white collar crime.” The piece then empirically examines several specific crimes to demonstrate that statutory approaches to defining and tracking white collar offenses are often ineffective and inaccurate. The article then concludes by recommending that the U.S. Sentencing Commission adopt a new multivariate definitional approach that recognizes the hybrid nature of many white collar offenses. The final version of the article will appear next year in Volume 50 of the Georgia Law Review.
Ellen S. Podgor and Lucian E. Dervan, “White Collar Crime”: Still Hazy After All These Years, 50 Georgia Law Review -- (forthcoming 2016).
With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under hybrid white collar statutes of perjury, false statements, obstruction of justice, and RICO. The empirical analysis suggests the need for an individualized multivariate approach to categorizing white collar crime to guard against broad federal statutes providing either under-inclusive or over-inclusive examination of this form of criminality.
Wednesday, August 27, 2014
Article About Former Penn State President Raises Issues Concerning Independent Investigative Reports and Role of Corporate Counsel
The New York Times Magazine several weeks ago published a lengthy, largely sympathetic article about Graham Spanier, the former Penn State president (Sokolove, "The Shadow of the Valley"), see here, who is awaiting trial on charges of perjury and other crimes in connection with the Pennsylvania grand jury investigation of his alleged complicity or nonfeasance concerning the actions of now-convicted (and affirmed on appeal) former assistant football coach Jerry Sandusky.
The article rather gently criticized the Freeh report, commissioned by the university, as I too did (see here), and asserts that it "probably led to [Spanier's] indictment." Commissioning an independent investigative report -- generally either by a former prosecutor or judge, or a large law firm -- is the de rigueur response of institutions or corporations accused of wrongdoing. An independent investigative report, especially by a respected authority, has the weight of apparent impartiality and fairness and thus the appearance of accuracy. However, the investigative report -- frequently done with no input from the accused or presumed wrongdoers (since, fearful of prosecution, they choose not to be interviewed) -- is often based on an incomplete investigation. Further, since the investigator is expected to reach conclusions and not leave unanswered questions, but unlike a prosecutor may not be required to have those conclusions tested by an adversary in an open forum, such investigations, like the Freeh investigation, are often based on probability, and sometimes even speculation, more than hard evidence. Lastly, the "independent" report, like the report concerning Gov. Christopher Christie's alleged involvement in Bridgegate, may be less than independent.
* * *
The article also discusses an interesting pretrial motion in Spanier's case concerning a question that had puzzled me since the Penn State indictments were announced over two years ago -- what was Penn State's counsel doing in the grand jury? Sub judice for six months is a motion for dismissal of the indictment and other relief related to the role of the Penn State general counsel ("GC") who appeared in the grand jury with Spanier, and also earlier with two other officials who were indicted, Tim Curley, the former athletic director, and Gary Schultz, a vice president.
According to the submitted motions (see here , here and here ), largely supported by transcripts and affidavits, the GC appeared before the grand jury with Spanier (and also separately with Curley and Schultz) and Spanier referred to her as his counsel (as also did Curley and Schultz). According to what has been stated, neither she, who had previously told the supervising judge -- in the presence of the prosecutor but not Spanier -- that she represented only Penn State, nor the prosecutor corrected Spanier. Nor did the judge who advised Spanier of his right to confer with counsel advise Spanier that the GC was actually not representing him or had a potential conflict.
Later, after Spanier's grand jury testimony, according to the defense motion, the GC -- represented by Penn State outside counsel -- was called to testify before the grand jury. Curley and Schultz -- both of whom had by then been charged -- objected in writing to the GC's revealing what they asserted were her privileged attorney-client communications with them. Spanier apparently was not notified of the GC's grand jury appearance and therefore submitted no objection.
Prior to the GC's testimony, Penn State's outside counsel asked the court essentially to rule on those objections and determine whether the GC was deemed to have had an attorney-client relationship with the individuals, as they claimed, before Penn State decided whether to waive its privilege (if any) as to the confidentiality of the conversations. Upon the prosecutor's representation "that he would put the matter of her representation on hold" and not "address . . . conversations she had with Schultz and Curley about [their] testimony," the judge chose not to rule at that time on the issue of representation, which he noted "perhaps" also concerned Spanier, and allowed her to testify, as limited by the prosecutor's carve-out.
Nonetheless, despite the specific carve-out to conversations with Schultz and Curley analogous to those she had with Spanier and the judge's mention that the issue might also apply to Spanier, the prosecutor questioned the GC about her conversations with Spanier in preparation for his testimony. Her testimony was reportedly harmful to Spanier (see here). At no time did the GC raise the issue of whether her communications with Spanier were privileged.
Whether the motion will lead to dismissal, suppression of Spanier's testimony or preclusion or limitation of the GC's testimony, or none of the above, will be determined, presumably soon, by the judge. Whatever the court's ruling(s), I have little hesitation in saying that is not how things should be done by corporate or institutional counsel. At the least, even if the GC were, as she no doubt believed, representing the university and not the individuals, in my opinion, the GC (and also the prosecutor and the judge) had an obligation to make clear to Spanier (and Schultz and Curley) that the GC was not their counsel. Additionally, the GC had, in my view, an obligation to make clear to Spanier that the confidentiality of his communications with her could be waived by the university if it (and not he) later chose to do so. Further, the GC, once she was called to testify before the grand jury, had in my opinion an obligation to notify Spanier that she might be questioned as to her conversations with him in order to give him the opportunity to argue that they were privileged. And, lastly, the GC had, I believe, an obligation to ask for a judicial ruling when the prosecutor went beyond at least the spirit of the limit set by the judge and sought from her testimony about her communications with Spanier.
Wednesday, June 5, 2013
FBI Special Agent Reginald Reyes' affidavit supporting DOJ's search warrant application for Fox News Reporter James Rosen's Google email account was ordered unsealed in November 2011. But it wasn't actually unsealed by the DC U.S. District Court's staff until late May of 2013. In other words, the affidavit was only unsealed several days after AG Holder testified that, "[w]ith regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy." Once the affidavit and search warrant application were unsealed, it became clear that Holder's testimony was inacurrate, as he had personally authorized the search warrant application. See here for yesterday's post on this issue.
DC Chief Judge Royce Lamberth is not happy about his staff's failure to unseal the affidavit and related documents. Here is Chief Judge Royce Lamberth's 5-23-2013 Order expressing his unhappiness.
Tuesday, June 4, 2013
“Well, I would say this. With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy.” Attorney General Eric Holder testifying under oath before the House Judiciary Committee on May 15, 2013.
"For the reasons set forth below, I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to SUBJECT ACCOUNT, are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. [Section] 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator to which the materials relate." FBI Special Agent Reginald B. Reyes' May 28, 2010, Affidavit in Support of Search Warrant Application for Fox News Chief Washington Correspondent James Rosen's Google email account. The warrant was authorized by Attorney General Holder.
Note than in addition to identifying "the Reporter" as a probable aider, abettor and/or criminal co-conspirator, the affidavit explains that the Department of Justice is not bound by the Privacy Protection Act, otherwise prohibiting warrants for First Amendment work product, precisely because "the Reporter" was "suspected of committing the crime [18 U.S.C. Section 793(d)] under investigation."
There is no doubt that AG Holder gave false testimony to House Members under oath. He is an idiot if he did so intentionally, and he isn't an idiot. What should Holder have done to fix this mess? Corrected the record, of course. In the immortal words of Richard Nixon, "that would have been the easy thing to do."
Holder should have said: "Dear Representatives Goodlatte and Sensenbrenner. I screwed up. My testimony to you is now inoperative. I forgot that I authorized this affidavit, which clearly identifies a 'Reporter' as somebody under investigation for a crime. I did not intentionally try to deceive you. My statement was careless and overbroad. Please accept my apologies."
But the Attorney General apparently cannot not bring himself to do anything as straightforward as that. Instead he spends days sending out spinmeisters, most recently, and regrettably, Deputy Assistant AG Peter Kadzik, as reported here by Sari Horwitz in today's Washington Post.
How sad. Can you imagine anything like this happending under Attorney General Griffin Bell? Bell, a genuine protector of our civil liberties, most likely would have nixed the supboena in the first place. But if Bell had authorized it, he never would have shied away from the ensuing controversy or hidden behind his DOJ underlings.
Mr. Holder has received his fair share of undeserved, demagogic criticism from the kooky right. He deserves what he's getting now.
Here is a copy of the Reyes Affidavit.
Thursday, July 12, 2012
Last month, in a thorough 64-page opinion, Southern District of New York Judge William Pauley ordered a new trial for three of four defendants convicted in what he described as "the largest tax fraud prosecution in U.S. history" because a juror, Catherine M. Conrad, had lied her way into being accepted as a juror. United States v. Daugerdas, et al., 09 Cr. 581.
There appears to be little question Ms. Conrad, a suspended lawyer, connived to make herself in her own word "marketable" so that she could have "an interesting trial experience" as a juror. In voir dire, she lied about her education, claiming the highest level she had reached was a B.A. when in fact she had a law degree. She concealed not only her membership in and suspension from the bar but her own criminal convictions -- for shoplifting, DWI, contempt and aggravated harassment -- as well as her husband's extensive criminal history, which included a seven-year prison stay. She made, according to the court, a "calculated, criminal decision to get on the jury."
At a post-trial hearing at which she was granted use immunity, Conrad stated that if the truth were known, "defense counsel would be wild to have me on the jury." In fact, however, Conrad turned out to be extremely biased against the defendants. In a congratulatory letter she sent to the prosecutors after the trial, she said she was "privileged to observe la creme de la creme -- KUDOS to you and your team." In that letter, she mentioned that she had fought against but ultimately had "thrown[n] in the towel" on a not guilty verdict on one of the counts concerning defendant David Parse. At the hearing, she testified that "most attorneys" are "career criminals." Two of the four convicted defendants were practicing lawyers; Parse was a non-practicing lawyer.
Judge Pauley, clearly upset by the need to retry a case which took three months, strongly urged the government to prosecute Conrad. Perhaps concerned that the government might feel that prosecuting her would be inconsistent with its opposition to a new trial, he added, "The prospect of preserving a tainted jury verdict should not temper the Government's resolve to call Conrad to account for her egregious conduct." Any prosecution of Conrad, however, obviously would have Kastigar obstacles because of her immunity.
The judge, following the Supreme Court's decision in McDonough Power v. Greenwood, 464 U.S. 548 (1984), found that in order to obtain a new trial, the moving party must "first demonstrate that a juror failed to answer honestly a material question on voir dire and then further show that a correct response would have provided a valid basis for a challenge for cause" (emphasis added). Apparently, even in a criminal case, the mere existence of a juror who deliberately lied her way onto the jury may not be sufficient to require a new trial. See United States v. Martha Stewart, 433 F.3d 273 (2d Cir. 2006). The McDonough test appears to be "If the juror hypothetically had answered truthfully, would her truthful answers have led to a challenge for cause?" Thus, unknown facts that might have affected her fitness to serve as a juror which would not in any case have been revealed by accurate responses to voir dire questioning presumably should not be considered.
In a lengthy analysis, mingling those hypothetical answers to questions asked during jury selection with, somewhat questionably, facts learned and impressions formed at the post-verdict hearing -- including Conrad's discovered dishonesty, bias and her animus to lawyers -- the court found that the McDonough criteria had been amply met. Accordingly, it ordered a new trial for all the convicted defendants -- except Parse, who the court ruled had "waived" his claim for a new trial since his attorneys knew or "with a modicum of diligence would have known" that Conrad's statements in jury selection were false and misleading and failed to disclose that knowledge to the court.
Judge Pauley felt that Parse's lawyers, the firm of Brune and Richard, knew or at least suspected (or alternatively should have known) that Conrad was an imposter certainly by the start of jury deliberations, but made a decision not to reveal their belief or suspicion to the court. The court was apparently affected by what seems to be a carefully-crafted, literally true but arguably misleading, statement in the lawyers' new trial motion that they were "prompted" by disclosure of Conrad's post-verdict letter to investigate and conduct records searches "in the wake of Conrad's . . . post-verdict letter." The court found that the motion contained "significant factual misstatements" and that its "clear implication" was to give the false impression that Parse's lawyers had no idea of Conrad's true identity until well after the verdict. In fact, as demonstrated in a later letter from the firm, in the firm's e-mails during trial, which were ordered by the court to be produced, and in testimony by the lawyers at a hearing, the firm apparently had concerns about and suspicion of Conrad's deception, initially at voir dire and later, after further record search revelations, during the judge's charge to the jury. A most graphic example was one lawyer's e-mail during the charge, "Jesus, I do think it's her."
The court believed that the attorneys' submission was designed to foreclose any government claim that their pre-verdict knowledge doomed their post-verdict motion on the grounds that they failed to act with "due diligence." The court found unconvincing the attorneys' claim that notwithstanding the similarities between the juror and the suspended lawyer discovered by electronic research -- name, home town, father's occupation, approximate age -- and the juror's use of previously unmentioned legal terms (such as respondeat superior) in jury notes she authored, the attorneys did not believe until after her letter to the government was disclosed that juror Conrad and suspended lawyer Conrad were the same person.
The court thus found that Parse's attorneys had "actionable intelligence" that Conrad was an imposter and that they had been required, but failed, to undertake "swift action" to bring the matter to the court's attention. The court apparently felt that the attorneys had attempted to "sandbag" it by remaining silent about the defect and only raising the issue when and if the trial did not conclude favorably, in effect providing them and their client with an "insurance policy against an unfavorable verdict." By his attorneys' conduct, the court ruled, Parse waived any error.
It may well be that during the trial the attorneys chose not to report their suspicions because they felt that Conrad, who appeared from web research to be potentially anti-government, would be a favorable juror for the defense, and they did not want to lose her. It may also be that, whatever the objective evidence that the juror and the suspended lawyer were one and the same might look like with hindsight, they actually thought that the juror and the suspended lawyer were different people since, as they claimed, they could not believe that the juror -- a lawyer -- would blatantly lie. Under either alternative, the court found, they had an obligation to share their knowledge with the court.
Some may argue that an attorney, in her duty of zealous representation of a client, may remain silent if she learns during jury selection that a juror misrepresented herself. Judge Pauley's contrary view is clear: "An attorney's duty to inform the court about suggested juror misconduct trumps all other professional obligations, including those owed a client." I agree. See New York Rules of Professional Conduct 3.3(b).
Some may also question whether Parse, the client, should suffer from his lawyer's purported misconduct or lack of diligence (of which he had no apparent knowledge). While generally a client is bound by a lawyer's strategic decision, and cannot cry foul if it backfires, Parse did suffer the same denial of a fair jury as the other defendants. Nonetheless, the court held that his attorneys' failure to report waived any objection by Parse, but granted new trials to the other three convicted defendants (whose lawyers apparently had no knowledge of Conrad's deception).
There are several ironies in this case: Parse, about whom, according to Conrad's letter to the prosecutors, the jurors "had qualms," is the only one whose conviction stands. Further, his attorneys were the ones responsible for investigating and presenting the motions which succeeded in a new trial for the others (who joined the motion), but not for him. And, lastly, if Conrad had told the truth at voir dire and revealed her suspension from the bar and her and her husband's criminal record, she undoubtedly would have been successfully challenged -- whether by cause or peremptory -- on the motion of the prosecution she so strongly favored, and not be the defense she despised.
Thursday, June 28, 2012
Don't overlook the Supreme Court's Alvarez decision today when reading about another important decision issued by the Court today - the one that upholds the Affordable Care Act. The Court's finding the Stolen Valor Act unconstitutional opens up some First Amendment arguments in the criminal sphere.
The test provided by the plurality decision is that "there must be a direct causal link between the restriction imposed and the injury to be prevented."
Justice Kennedy (joined by Roberts, Ginsburg, and Sotomayor) found that the respondent who lied about receiving a Congressional Medal of Honor, in direct contravention of a federal criminal statute - the Stolen Valor Act of 2005 (18 U.S.C. s 704) had a first amendment protection. The decision reminds us that there are certain content-based restrictions that are permitted -
"Among these categories are advocacy intended, and likely, to incite imminent lawless action, obscenity, defamation, speech integral to criminal conduct; so-called 'fighting words'; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent" (citations and parentheticals from the decision omitted here)
This opinion states that "[t]hese categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules." But the Court also notes that there is no "general exception to the First Amendment for false statements." And specifically when considering defamation it says "that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood."
That said, this opinion distinguishes statutes such as the false statement statute (s 1001); perjury (s 1623) and false representing that one is speaking on behalf of the Government (s 912).
Although this opinion stresses the importance of the military medals - as it should, it questions whether the "government's chosen restriction on the speech at issue [is] 'actually necessary ' to achieve its interest."
The key test used here - "There must be a direct causal link between the restriction imposed and the injury to be prevented."
The opinion ends by stating:
The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment."
Justices Breyer and Kagan offer a concurrence that stresses that there is a less restrictive way to achieve the government's goal. They suggest using "intermediate scrutiny" here in evaluating this case, but also hold that "[t]he Government has provided no convincing explanation as to why a more finely tailored statute would not work."
Dissenting are Justices Alito, Scalia, and Thomas. They note that the statute is limited in several different ways. They argue that "false statements of fact merit no First Amendment protection in their own right" and that it is a narrow law.
Commentary to follow.
Monday, May 21, 2012
Here is the Houston Chronicle's take on today's proceedings in U.S. v. William Roger Clemens. Brian McNamee was allowed to testify on re-direct that he injected three other players with HGH. Judge Walton gave the jury a limiting instruction that the testimony could only be used to bolster McNamee's credibility--not to infer Clemens' guilt. Still, this was a significant break for the government.
I am now batting 0 for 2 in my most recent predictions. I predicted that Judge Walton would strike some of Andy Pettitte's testimony and that the judge would not let McNamee talk about injecting other players. So take this next observation wiht a grain of salt. To me, the jurors' questions at the end of each day show their skepticism regarding the government's case and the credibility of key government witnesses.
Sunday, May 20, 2012
The name says it all. On Friday the Clemens prosecutors filed the Government's Motion to Admit Evidence of Brian McNamee's HGH-Based Interactions With Other Players and His Cooperation Relating to the Same to Rehabilitate the Witness. Call it anything you want, it is nothing more than an attempt to convict Clemens through guilt by association. As Judge Walton said before the first trial, in keeping this evidence out:
"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.”
“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."
Judge Walton's original ruling, which shocked the government, was provisional:
"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.”
Now the government is making its move. Of course the prosecutors would have filed this motion irrespective of how McNamee's cross-examination actually went. They immediately violated the Court's order during opening statement of the first trial by mentioning other Yankee players who received illegal substances.
I'm betting that Judge Walton keeps the evidence out.
Thursday, May 17, 2012
Judge Walton says that the jury is bored at the Clemens trial, and of course he blames the lawyers. Maybe he should look in the mirror. The proceedings would have moved much faster had the Court put a stop to the government's pettifogging objections to cross-examination questions that allegedly strayed beyond the scope of direct.
The judge has also, according to the latest press reports, characterized Rusty Hardin's lengthy cross-examination of Brian McNamee as confusing.
I stopped in on the trial yesterday morning during Hardin's cross-examination of McNamee. Although there was no smoking gun moment, it was an accomplished cross that ably exposed McNamee's shifty, evasive personality. Near the end, Hardin asked a perfectly acceptable question, the point of which was to stress that McNamee would have been valuable to Clemens as a private trainer irrespective of McNamee's ability to provide illegal drugs. The prosecution objected. Rather than simply ruling on the objection, Walton engaged in an unnecessarily lengthy exchange with the attorneys on the finer points of evidentiary law. You would have thought they were discussing the Ex Post Facto Clause or the Magna Carta.
The trial judge has great discretion to move a case along--even a big case. This doesn't mean that the Court should prevent either side from putting on its evidence or vigorously questioning witnesses. The Clemens case would benefit from quicker bench rulings on objections, particularly objections that only serve to break the other side's pace and stride. The government objections that I witnessed on Wednesday did not merit the lengthy treatment they were given by the Court.
Tuesday, May 15, 2012
Few things are more exhilarating to a criminal defense attorney than turning the government's witness into your own. This is exactly what Rusty Hardin did with Yankees GM and Senior VP Brian Cashman to close out last week's testimony in the Roger Clemens trial. It's not as if Cashman provided that much to the government in the first place. He testified on direct that the Yankees acquired Clemens from Toronto after the 1998 season. Clemens contemporaneously asked the Yankees to hire Toronto strength coach Brian McNamee. Cashman declined. There is no evidence that Clemens pressed the matter further at the time. Clemens was injury plagued in 1999, and had his worst ERA ever. After getting shelled in a 1999 playoff game at Fenway Park, Clemens asked Cashman to hire McNamee for the 2000 season. Cashman obliged. In 2000 Clemens rebounded with a great year.
On cross Hardin established that Clemens had experienced a very poor season with the Red Sox ten years previously, yet similarly rebounded the next season with a banner year. Hardin also had Cashman confirm that Clemens never complained when the Yankees ultimately fired McNamee. And Cashman smeared McNamee's character in response to Hardin's questions concerning the circumstances of McNamee's firing. Sprinkled throughout Cashman's responses to Hardin were glowing testaments to Clemens' work ethic, competitive spirit, decency, and sportsmanship.
At the end of the day, the Court accepted proposed questions for Cashman from the jury. One of them was as follows:
"Over the years that you've known Roger Clemens, is it fair to say you admire him as a great player and a leader?"
Judge Walton, who has been needlessly Talmudic in his approach to cross-examination questions veering "beyond the scope" of direct, nevertheless allowed the question, transposing it slightly. He asked Cashman:
"[O]ne of the jurors wants to know what your feelings are about Roger Clemens as a player and as a leader."
Here was Cashman's out of the ballpark response:
"One of the greatest players that I've ever seen, one of the best people, which goes to his leadership abilities. He, you know, he worked harder than everybody. He led by example. So a lot of times, you know, someone like Roger Clemens was given a great deal of ability. But not everybody honors that ability with the work ethic they put behind it. Roger did that.
And Roger at the same time was inclusive. You know despite his, you know, extreme accomplishments and his abilities and therefore celebrity that came from that, you know, his leadership is also shown in the fact that he, you know, treated the 25th man the same way he'd treat maybe the second best player on the team as well as the support staff. So, you know, there's a lot of aspects of being a leader. It's, you know, a true leader leads everybody, you know, the good ones and the bad ones. Roger led them all. So, he was a great player, a hard worker. His work ethic as well as his leadership ability was unquestionable."
Wednesday, May 9, 2012
I mentioned in a recent post that Reggie Walton is a fair judge. That fairness was on display again yesterday in the Roger Clemens trial, when Walton prohibited federal prosecutors from introducing testimony and documents pertaining to Clemens' fat salary as a pitcher. Walton correctly concluded that the prejudicial effect of this evidence outweighed its supposed probative value. It is a very rare federal judge who will bar this kind of "lavish lifestyle" evidence. The government always wants it in, ostensibly to show that a defendant's alleged criminal conduct was part of an effort to maintain a lavish lifestyle. In reality, prosecutors simply want to prejudice the defendant in the eyes of jurors by showing them how rich he is, how "high-on-the-hog" he lives, and how different he is from you and me.
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.
Friday, April 6, 2012
In the wake of the Schuelke/Shields report and the introduction of new discovery legislation, one has to wonder whether the Supreme Court will take a case that raises a Brady discovery issue. At their doorsteps is the case of James A. Brown, a case from the Enron days. As previously noted (here) Brown, is a former Merrill Lynch executive who "was convicted of perjury and obstruction of justice for his testimony before the Enron grand jury about a transaction between Merrill and Enron in late 1999." There are important issues here like the appropriate standard of review for Brady cases. Should it be "clear error" or should it be de novo. (see here) The case also examines "materiality," a term that has created some confusion. What must a prosecutor provide to the defense counsel. And isn't it odd that the adversary in the process is making the determination for what the defense is entitled to receive. The case looks at summaries being provided to defense counsel. Bottom line - summaries are not the same as the real thing.
In the reply brief recently filed, they argue-
"Here, as in Stevens, many exculpatory statements appear only in raw notes of government interviews of key players. In Brown, the Enron Task Force actually yellow-highlighted these notes before trial – along with prior testimony and FBI 302s – indicating that the information met the requirements of Brady and was material, but suppressed them anyway. While continuing to deny that any evidence fell within Brady, new prosecutors recently disclosed 6,300 pages including much (but still not all) of the evidence suppressed by the Task Force." (Reply Brief - Download FILED REPLY ON CERT.)
The government's brief sees things differently - Download SG OPP32312.
This case is distributed for conference on April 20th.
Tuesday, January 24, 2012
Joe Paterno is dead, his legacy as one of the greatest coaches in the history of sports tarnished by his termination -- unjust, I believe -- on the grounds that he inappropriately failed to pursue vigorously an allegation of child sex abuse (see here, here and here).
Paterno's death and absence as a witness will likely have little or no effect on the trial of Jerry Sandusky, the former Penn State assistant coach who was the subject of the allegation reported to Paterno by a Penn State graduate assistant coach, Mike McQueary. Paterno's only information about the Sandusky issues appears to have been the hearsay report by McQueary, and thus it is unlikely that he would have been a witness.
Paterno's unavailability, however, may have a considerable impact on the trials of Tim Curley, the former university athletic director, and Gary Schultz, a former university senior vice president, both of whom have been charged with failure to report the suspected child abuse and perjury. Both have been charged with falsely testifying that McQueary, when he spoke with them, did not mention serious or criminal sexual conduct. McQueary, whom the grand jury report (presumably written by the prosecutors) deemed "extremely credible," testified that he reported the specific act to both Curley and Schultz, and seemingly also to Paterno. Paterno's grand jury testimony, however, apparently was that what McQueary related to him was far less specific, and thus more ambiguous. Accordingly, while the grand jury report indicated that Paterno would be a corroborative witness for the prosecution in that he was told by McQueary of the alleged "sexual exploitation" and then reported what McQueary had said to Curley and Schultz, his testimony would apparently also have to an extent corroborated their defenses that McQueary was less explicit than he now claims.
In another highly-publicized investigation involving a former college sports coach, former Syracuse University assistant basketball coach Bernie Fine, it has been reported that two of the four men who had accused Fine of molesting them when they were children have admitted that they committed perjury in connection with the case. One has admitted that he lied when he claimed Fine molested him. The second, the only one whose allegations fall within the applicable criminal statute of limitations, while still claiming that abuse occurred, has admitted doctoring purportedly supporting emails.
The Fine situation is a reminder that not every allegation of child sexual abuse is true. Indeed, in my experience, there is a far higher percentage of false accusations of sexual misconduct than of any other criminal activity. Thus, such accusations should be scrutinized especially carefully before they are acted upon by law enforcement or others.
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)
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.