Friday, November 16, 2007
Homerun record holder and erstwhile San Francisco Giant Barry Bonds was indicted on four counts of perjury -- technically false declarations under 18 U.S.C. Sec. 1623 -- and one count of obstruction of justice arising from his testimony before a federal grand jury on December 4, 2003. The testimony was part of the investigation of the Bay Area Laboratory Cooperative (Balco) for the manufacture and distribution of designer steroids, including "the clear." The four perjury counts relate to Bonds' denial that he received steroids from his long-time personal trainer, Greg Anderson, who was involved in Balco and entered a guilty plea to narcotics charges back in 2005. Bonds received immunity before he testified, but a grant of use/fruits immunity does not protect against a perjury indictment if the testimony is false. In looking through the indictment (available below) and thinking about various aspects of an investigation that has dragged on for over two years now, the following occurred to me:
- Is there a "literal truth" defense available? In order to successfully prosecute a person for perjury, the government must establish that the witness statements were lies, and not just misleading or non-responsive. The famous case of United States v. Bronston, 409 U.S. 352 (1973), requires that the testimony be false because "the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner -- so long as the witness speaks the literal truth." (Italics added). The Bonds testimony identified as perjurious in the indictment seems fairly straightforward, with him responding "No" to questions about receiving steroids from Anderson or having Anderson inject him. Of course, ambiguity in the questions can preclude a conviction if a defendant can assert he did not understand it, or was confused in how to respond. Some of the questions seem fairly straightforward, such as "in the weeks and months leading up to November 2000, were you taking steroids -- No." Other responses seem a bit more ambiguous, such as "Not that I know of" or "I don't recall having anything like this . . . ." Bonds' lawyers are sure to argue that his statements were not misleading, and perhaps challenge the materiality of the testimony. And even without a "literal truth" issue, the government still has to prove Bonds knew his statements were false, which is no easy task.
- What took so long? Prosecutors have been investigating Bonds for perjury at least since March 2005, and perhaps earlier. Part of the delay is attributable to dealing with contempt issues related to the leaking of Bonds' testimony to two San Francisco Chronicle reporters, who were spared jail when the government determined it was the lawyer for another Balco defendant who leaked the transcripts of a number of baseball players who testified. There was also the contempt citations of Anderson, the former trainer, who has been sent to jail twice for not testifying before the grand jury. Perhaps more importantly, the U.S. Attorney's Office in San Francisco has been involved in quite a bit of turnover, including the removal of former U.S. Attorney Kevin Ryan in 2006 when he was one of the seven U.S. Attorney's fired in what became a major scandal in Washington, D.C. There is still no permanent appointee in the position, and any time there is turnover in the leadership of the U.S. Attorney's Office a case as sensitive as Bonds' will be delayed.
- What happened to the tax evasion investigation? There were media reports about an investigation of whether Bonds declared income from sports memorabilia sales, including claims that an alleged former girlfriend would testify to cash transactions. The credibility of the witnesses in this area, at least as described in the media, was open to serious question, and tax counts would likely have distracted from the core perjury/obstruction case. The tax issue could potentially be used to cross-examine Bonds if he chooses to testify and claim he is a truthful person, so the issue isn't dead, but it was probably a good idea to go with a single issue prosecution.
- Where's Greg Anderson? As noted above, prosecutors subpoenaed Anderson twice to testify before the grand jury, and each time he refused and landed in jail for contempt. The first stint ended when the grand jury's term expired in July 2006, but a new grand jury was empaneled a short time later and Anderson headed back to jail, where he has been for over a year. Anderson was released the same day the indictment issued, and I think it is likely he did not testify before the grand jury. After waiting over a year for him to crack, the federal prosecutors probably decided to move forward without him. Once the indictment issued, there was no further need to hold him in contempt for refusing to testify before the grand jury. Whether the government will try to get him to testify at trial remains to be seen, but I rather doubt it because he would be such a risk, i.e. testifying favorably for Bonds, without grand jury testimony to hold over him.
- Why the obstruction charge? The obstruction of justice charge is broader than the perjury charges because it does not require proof that Bonds made literally false statements, only that he sought to impede the grand jury investigation. The charge looks like a backstop -- note the use of baseball terminology -- in case there are problems with one or more of the substantive perjury counts that leads to a "not guilty" verdict. The obstruction count includes both the alleged false statements by Bonds and that his testimony before the grand jury was "evasive and misleading." This claim would be insufficient for perjury, but can be enough for obstruction. If Bonds were convicted of obstruction, then any "not guilty" verdicts on perjury counts would not affect the likely sentence.
- Why Didn't Word About the Indictment Leak Out in Advance? In a case riddled with leaks, the indictment, or at least its timing, seems to have been a complete surprise. This has been a closely watched case, and there was some speculation that an indictment would be returned after the baseball season ended in late September, but nothing happened and it seemed to drop off the radar screen. For once, grand jury secrecy seems to have worked.
- When will the trial take place? While there is a very slight chance a trial could be completed before baseball's regular season starts in April, I don't see any realistice possibility of that happening. Indeed, the trial is likely to take place after the next baseball season, and it may well start in 2009 rather than 2008. In looking at other prosecutions of a high-profile defendant on similar charges, Martha Stewart was indicted in June 2003 and convicted in May 2004, while I. Lewis Libby was indicted in October 2005 and convicted in March 2007. The Bonds case is sure to include the usual array of pre-trial motions, from discovery to dismissal, and getting the lawyers and judge to clear time for the case will likely result in a trial date no earlier than nine months from now, and perhaps even next November. The initial statement from Bonds' attorney indicated a likely charge of prosecutorial misconduct related to leaks in the case, and that will require time to sort out. Claims from either side that they want a quick trial date does not necessarily mean that's in their interest. Delay beyond the start of the 2008 season may mean that Bonds remains permanently at 762 as his homerun total. Bonds has been cut loose by the Giants, and at this point no team has signed him during the free agency period. There is a chance that MLB Commissioner Bud Selig will suspend Bond pending resolution of the case, but that remains to be seen. It may be that no team will sign him, and Selig then won't have to take any action one way or other until the case is resolved, probably after the 2008 season. If Bonds does not play in 2008, will any team take a chance on a 44-year old player who has sat out a year and had serious steroid use allegations aired, even if he's found not guilty?
- What are the odds of a plea bargain? The morning line in Vegas won't be less than 100-1, roughly the same odds as the Tampa Bay Rays winning the World Series. This may be Bonds' last chance to salvage his legacy, so I think a trial is a foregone conclusion, unless somehow a court dismisses the charges, which is equally unlikely.
Let the games begin. (ph)
Thursday, November 15, 2007
KTVU.com has a story with a headline of, "Bonds Indicted By BALCO Federal Grand Jury." Press reports say the charges are perjury and obstruction of justice. (Wall Street Jrl (AP) here, CNN here) More to follow.
Friday, September 14, 2007
Further thoughts on the earlier post (here) about a story in The Oregonian (here) in which lawyers and judges decry the amount of perjury that seems to be occurring in court, and the paucity of prosecutions for the lies. One of the best lines in the article is from former NADCL president John Henry Hingson III, who notes that divorce court is the place to go if you want to see perjury: "The grand-slam, home-run winner is in domestic relations court. People in divorce cases act crazy." Of course, labeling something as a lie is easy to do, but proving perjury is a much more difficult task. In addition to older common law requirements like the two-witness rule, or now the two independent pieces of evidence requirement, the Supreme Court's decision in Bronston v. United States, 409 U.S. 352 (1973), requires more than just inconsistent or evasive answers. In Bronston, the Court held that a defendant cannot be convicted if the answer is literally true. Thus, the government cannot prosecute a witness for evasive answers, or ones that have enough ring of truth that it cannot be shown to be demonstrably false..
Another way to avoid a perjury charge is to correct testimony to show that the mistake was only inadvertent, or at least not a clearly intentional falsehood. There are not many crimes that allow a do-over, but 18 U.S.C. Sec. 1623(d), one of the two perjury statutes, does allow a witness to change the testimony to cure any false statement, or misstatement. It provides, "Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed." A recent incident brought that provision to mind. Director of National Intelligence Admiral Mike McConnell issued a statement correcting testimony he gave to Congress about the effectiveness of the recently-passed Protect America Act. Admiral McConnell cited the Act at a Senate Committee hearing as being helpful in the recent arrest of three alleged terrorists in Germany, but in a statement (here) he now recants that testimony:
During the Senate Committee on Homeland Security and Governmental Affairs hearing on September 10, 2007, I discussed the critical importance to our national security of the Foreign Intelligence Surveillance Act (FISA), and the recent amendments to FISA made by the Protect America Act. The Protect America Act was urgently needed by our intelligence professionals to close critical gaps in our capabilities and permit them to more readily follow terrorist threats, such as the plot uncovered in Germany. However, information contributing to the recent arrests was not collected under authorities provided by the Protect America Act.
Not that Admiral McConnell's testimony would have constituted perjury even without the correction, but claims will no doubt fly around Capitol Hill about lies and perjury. (ph)
Monday, September 10, 2007
The Oregonian has an article by Edward Walsh that discusses the amount of perjury that regularly occurs in courts. In the federal system perjury is controlled by 18 U.S.C. s 1621 which requires that the "government prove that the defendant 1) under oath, by one authorized to administer the oath; 2) before a competent tribunal, officer, or person; 3) made a false; 4) material statement; 5) willfully and with knowledge of its falsity." See White Collar Crime in a Nutshell.
Sunday, August 26, 2007
The ABA Jrl, in an article by Debra Cassens Weiss, explores the effect of a recent federal court ruling that allows witnesses to review their grand jury testimony. The title of the article is, "Ruling Thwarts Perjury Prosecutions."
The court's opinion in In Re Grand Jury states:
"This case raises a question that, surprisingly, has not yet been decided by this court: whether federal grand jury witnesses, after they have testified, are entitled to examine the transcripts of their own testimony. Applying Federal Rule of Criminal Procedure 6(e)(3)(E)(i), we hold that grand jury witnesses are entitled to review the transcripts of their own testimony in private at the U.S. Attorney’s Office or a place agreed to by the parties or designated by the district court."
In rejecting one of the government's arguments, the DC Circuit Court states:
"[T]he Government is concerned about grand jury witnesses (or their attorneys) who disclose information to other grand jury witnesses (or their attorneys) with the purpose of obstructing the criminal investigation. The Government identifies joint defense agreements among attorneys as a threat to the integrity of the grand jury process. But denying witnesses access to their own transcripts to help prevent witnesses from talking to others makes little sense to begin with – and makes even less sense given that grand jury witnesses are under no legal obligation of secrecy. A grand jury witness is legally free to tell, for example, his or her attorney, family, friends, associates, reporters, or bloggers what happened in the grand jury. For that matter, the witness can stand on the courthouse steps and tell the public everything the witness was asked and answered. See Fed. R. Crim. P. 6(e)(2)(A)-(B); Fed. R. Crim. P. 6, Advisory Committee Notes, 1944 Adoption, Note to Subdivision (e) ("rule does not impose any obligation of secrecy on witnesses"). The secrecy rules therefore are no justification for denying witnesses access to their own transcripts."
(esp)(hat tip to John Wesley Hall)
Friday, July 27, 2007
Four Democrat senators sent a letter (here) calling for the appointment of a special prosecutor to investigate Attorney General Alberto Gonzales for possible perjury in his testimony before the Senate Judiciary Committee about dissent in the Administration over the secret surveillance program and his role in the firing of nine U.S. Attorneys. The issue came to the forefront when former Deputy Attorney General James Comey testified about a meeting in 2004 in the hospital room of then-Attorney General John Ashcroft to pressure him to renew the authorization for the surveillance program over Comey's objection. Gonzales was there as Counsel to the President, and Ashcroft refused to override Comey's decision. In testimony on July 26 before the Committee, FBI Director Robert Mueller appeared to call into question Gonzales' early statements denying any dissension over the program, according to an AP story (here). The Senators' letter states that "the Attorney General has provided -- at a minimum -- half-truths and misleading statements about the removal and replacement of U.S. Attorneys, about his role in trying to circumvent Acting Attorney General Comey, and about the Administration's position on the NSA wiretapping program."
The White House has maintained its support of Gonzales, asserting that his testimony has not been inconsistent. Press Secretary Tony Snow stated (here):
Q: On Gonzales, this Negroponte memo shows an apparent contradiction in what he told the committee two days ago about that briefing at the White House. But yet Gonzales' spokesman says that what he said on Tuesday was true. How can that be? Can you explain that?
MR. SNOW: Unfortunately we get into areas that you cannot discuss openly. It's a very complex issue. But the Attorney General was speaking consistently. The President supports him. I think at some point this is going to be something where members are going to have to go behind closed doors and have a fuller discussion of the issues. But I can't go any further than that.
Q Everyone else says the meeting was about the TSP. Negroponte says it, people who were there said it, Comey said it. How could that not be right?
MR. SNOW: It's simply more complex than that, and I can't go into any more detail.
Q Is there another program that existed besides the TSP program?
MR. SNOW: I will repeat myself -- it's more complex, and I cannot go any further than that. [Italics added]
For those who remember the days of Watergate, the answers seem perilously close to a non-denial denial ("It's a very complex issue").
As co-blogger Ellen Podgor pointed out in an earlier post (here), Gonzales has recused himself from the investigation of the firing of the nine U.S. Attorneys, and his involvement in the meeting with Ashcroft and Comey in 2004 likely knocks him out of any participation in an investigation of that issue. The letter from the Senators is addressed to Solicitor General Paul Clement, the highest ranking DOJ official not recused from the matters. While it is unlikely at this point that a special prosecutor will be named, questions about Gonzales' testimony will persist. If a special prosecutor is appointed, I doubt Patrick Fitzgerald's telephone will ring, despite his experience in the area. A logical candidate would have been Craig Morford, a career prosecutor with experience in a variety of districts who has no strong political ties, but he's now the Acting Deputy Attorney General due to the pending resignation of Paul McNulty. We shall see. (ph)
Saturday, July 7, 2007
The former defense attorney for the founder of Balco (Bay Area Laboratory Co-operative) agreed to an increase in the sentence that can be imposed as part of his plea bargain in the hope it will satisfy U.S. District Judge Jeffrey White, who rejected the earlier agreement that limited the sentence to two years. Troy Ellerman admitted to allowing a reporter for the San Francisco Chronicle to review the grand jury testimony of soon-to-be home run king Barry Bonds and other athletes about their receipt and use of steroids obtained through Balco. He had received the transcripts as part of the discovery in the narcotics prosecution of his client, and they were subject to a protective order. When the Chronicle reported on the testimony, he accused the government of leaking the transcripts in a filing with the district court.
Ellerman entered a guilty plea to obstruction of justice, filing a false declaration, and two counts of criminal contempt. Under the Federal Sentencing Guidelines, the range is from 24 to 33 months, and the new agreement authorizes a sentence up to the top end of the applicable Guidelines range rather than capping it at two years. Whether Judge White will accept the new plea agreement remains to be seen because the court has discretion to impose a sentence above the advisory Guideline for the case; a sentencing hearing is scheduled for July 12. Interestingly, the newly-agreed sentence is the same as that imposed on Victor Rita in the case recently decided by the Supreme Court upholding the appellate presumption of validity for sentences within the Guidelines, and only three months more than the sentence imposed on I. Lewis Libby before the President's commutation. No word on whether Ellerman's attorney will offer a "Libby motion" to reduce the prison term, but given the Judge's views on the need for an increased sentence an argument about it being "excessive" would be an exercise in futility. A Chronicle story (here) discusses the most recent plea agreement. (ph)
Tuesday, May 22, 2007
When former BP CEO Lord John Browne stepped down from his position over the revelation of an embarrassing personal relationship, he admitted to lying to a British court to obtain an injunction preventing the publication of the story. As discussed in an earlier post (here), his admission could be the basis for a perjury prosecution of the type we've seen in the United States in the past few years. Professor Stuart Green, author of the book Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime, discusses the considerations that should go into a decision to prosecute someone for perjury in a post on the Oxford University Press Blog (here). He writes:
In America, we’ve had more than our share of perjury cases to observe in recent years, involving such high profile figures as Bill Clinton, Scooter Libby (top aide to Vice President Dick Cheney), and John Poindexter (National Security Advisor to President Reagan). We’ve also had more than our share of disagreements about the wisdom of such prosecutions. Partisans of each of these figures have claimed that their prosecutions for perjury and other “cover-up” crimes (such as obstruction of justice and making false statements) have been unfair and unnecessary. Indeed, it often seems as if the way people feel about the merits of such cases turns more on their subjective feelings about the character of the person charged than with any objective facts about the person’s allegedly criminal conduct. In my view, this is unfortunate. There are in fact impartial and objective factors that ought to be considered in determining whether to prosecute for perjury.
As discussed more fully in his book, Prof. Green recommends looking at the seriousness of the underlying conduct lied about, the circumstances surrounding the perjury, and the effect of the misstatement in deciding whether the case is worthy of a criminal prosecution. In Lord Browne's case, he concludes that "[a]lthough the decision is more difficult than it may at first appear, my advice to Lord Goldsmith [the Attorney General] would be to exercise his discretion and refrain from prosecuting Browne for perjury." For those with an interest in the foundations of white collar crime, I highly recommend Lying, Cheating, and Stealing -- it is well worth the time. My review of the book is available here. (ph)
Wednesday, May 2, 2007
The resignation of BP p.l.c. CEO Lord John Browne included his admission that he made a false statement to a British court in order to obtain an injunction preventing the publication of an embarrassing story about a personal relationship. In a statement (here) acknowledging the relationship, Lord Browne stated, "My initial witness statements, however, contained an untruthful account about how I first met Jeff. This account, prompted by my embarrassment and shock at the revelations, is a matter of deep regret. It was retracted and corrected. I have apologised unreservedly, and do so again today." He denied allegations that he allowed the person to use company resources, and BP's chairman stated that "[a]t John's explicit request, the Board instigated a review of the evidence. That review concluded that the allegations of misuse of company assets and resources were unfounded or insubstantive." I'm not sure what "insubstantive" means, although perhaps the point is the amount is insignificant and so should not be a concern to shareholders. The problem for the company is that related-party transactions must be disclosed, and any misuse of corporate resources can be a significant concern for regulators.
The British tabloid that broke the story, The Mail on Sunday, issued a statement (here) assailing Lord Browne: "That Lord Browne should have felt free to lie deliberately and repeatedly raises deeply worrying questions about the system of secret court hearings which is increasingly being used by the rich and powerful to prevent the public knowing the truth about their activities." The paper said it would make its evidence available to the Attorney-General for possible prosecution for perjury. The governing statute is the Perjury Act of 1911, which makes it a crime for a witness in a judicial proceeding to "make a statement material in that proceeding, which he knows to be false or does not believe to be true . . . ." That provision is similar to the federal perjury statute in 18 U.S.C. Sec 1621, which makes it a crime to testify about a matter "which he does not believe to be true." Lord Browne's explanation for making the false statement does not negate the intent for perjury, because a violation is based on knowledge of the falsity of the statement, not that the witness had a good explanation for lying. That said, Lord Browne is a highly-regarded business person, and the underlying story has at best a tenuous connection to BP's business, so it may be one prosecutors decide to pass on. (ph)
Thursday, March 29, 2007
A Wall Street Journal editorial (here) asserts that the Senate Judiciary Committee hearing on the removal of eight U.S. Attorneys is really a "perjury trap" designed to set up the aides to Attorney General Alberto Gonzales subpoenaed to testify. The editorial argues that Judiciary Committee Chairman Leahy and other Democrats should not be surprised "if government officials decide they'd rather not step into this obvious perjury trap." In the context of grand jury investigations, the claim of a perjury trap is part of an argument seeking dismissal of charges on the ground that a prosecutor calling a person to testify with the knowledge that the witness may lie, creating the basis for a separate criminal prosecution, is an unacceptable use of the grand jury and violates the witness's due process rights. Of course, to be a good perjury trap, the witness must not be aware of the pitfall awaiting their false statements, and the prosecutor presumably knows the truth in setting up the witness. I'm not sure one can say that a perjury trap is being set if the Judiciary Committee does not know the truth in advance. That such traps have been set is certainly true -- note the impeachment charges against former President Clinton for perjury based on his grand jury testimony -- but they can be avoided if the witness tells the truth or asserts the Fifth Amendment. Monica Goodling, senior counsel to AG Gonzales, took the privilege route and avoided the trap, if there was one, although she may be subjected to the unseemly practice of being excoriated by Committee members for her decision. A Congressional committee can't really set a perjury trap because it does not control the decision whether prosecute the perjury case, which only the Department of Justice can do, although it can offer the bait.
Unlike Goodling, AG Gonzales' former chief of staff, Kyle Sampson, will testify and probably take the brunt of the questioning regarding inaccurate statements provided to Congress about the reasons for the U.S. Attorney firings. In prepared remarks (here courtesy of the Wall Street Journal), Sampson states that "[t]he distinction between 'political' and 'performance-related' reasons for removing a United States attorney is, in my view, largely artificial." It depends, of course, on what one means by "political." If "political" means favoring one party over another, then that statement would seem to contradict the idea that a prosecutor must dispense justice even-handedly. If the point is that following the President's law enforcement initiatives is important, and hence one must show "political" support, then there is a stronger basis for finding the distinction "artificial." The question is whether the decision to terminate the U.S. Attorneys was "political" in the latter sense when the so-called "performance" issues may have been a cover for the decision, particularly the removal of Bud Cummins from the Eastern District of Arkansas.
Senators will also focus on Sampson's e-mails, including a newly released set (here) in which he helps prepare a letter in response to Senators questioning the appointment of Cummins' replacement, Tim Griffin. In his e-mail dated February 8, 2007, drafted for the signature of Acting Assistant Attorney General Richard Hertling, Sampson wrote, "I am not aware of Karl Rove playing any role in the Attorney General's decision to appoint Griffin." That statement later appears in the letter delivered to Senate Majority Leader Harry Reid. Unfortunately, other e-mail traffic indicates White House involvement in the decision, including references to Rove. Needless to say, the Senators will have their long knives out, but whether we learn anything new from the hearing is an open question. According to Sampson, "This is a benign rather than sinister story," but that remains to be seen. (ph)
Thursday, February 15, 2007
The mystery about who leaked the grand jury transcript of erstwhile San Francisco Giants slugger Barry Bonds has been solved, much to the relief of the two reporters who published stories based on the testimony. Sacramento attorney Troy Ellerman, who at one time represented Balco founder Victor Conte in the steroids prosecution, agreed to plead guilty to permitting San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada view the transcripts that had been produced as part of the pre-trial discovery in the case. Williams and Fainaru-Wada were held in contempt for refusing to testify about the identity of their source of the transcripts that is part of a larger investigation of Bonds for perjury. Their case was before the Ninth Circuit, and given how the appellate courts have ruled on such media confidentiality claims lately, the two reporters did not have a strong chance of avoiding jail. As it is, they are now off the hook, and only Bonds' former trainer, Greg Anderson, remains incarcerated for civil contempt for refusing to testify about steroid use by the baseball star. At some point, a decision will have to be made about whether to move forward with a prosecution of Bonds or drop the case. A story on ESPN.com (here) discusses the latest twist in the Bond perjury saga. (ph)
The big finale of the trial of I. Lewis Libby was something of a dud, with neither Libby nor Vice-President Cheney called to testify. Indeed, the last day involved no new witnesses, and Special Counsel Patrick FItzgerald did not even put on a rebuttal case, apparently unconcerned about not having the last word in the evidentiary phase of the trial. The end was not without some legal controversy, however, as U.S. District Judge Reggie Walton refused to permit the defense to introduce various items of classified information to butress Libby's claim that his focus in June and July 2003 was on matters of great national importance, and not little ol' Valerie Plame and her husband, Josephy Wilson.
Judge Walton came across, from the sound of the media reports (see CNN.com here), a bit peeved at the defense for claiming before trial that Libby would testify and needed the access to extensive classified information, and then declining to call him to testify but still seeking to introduce the evidence. The requirements for handling such information, under the Classified Information Procedures Act (CIPA), are quite complicated and appear to have occupied a significant amount of the judge's time and energy. By not testifying, Judge Walton determined that the information was irrelevant or inadmissible hearsay because only Libby could provide the context for the information. Judge Walton's position was clear when he said that "[i]f I get reversed on that one, maybe I need to hang up my spurs." The exclusion of evidence that a defendant claims is central to his defense is likely to be a significant issue if there is a conviction.
Professor Doug Berman of the estimable Sentencing Law & Policy blog raises an interesting question (here) about the defense's decision not to call Libby to testify after indicating repeatedly in pre-trial proceedings, particularly the CIPA hearings, that he would testify: did the lawyers intentionally mislead the court? As he notes, if Libby were convicted, one possible enhancement under the now-advisory Federal Sentencing Guidelines is obstruction of justice under Section 3C.1.1. If the defense lawyers misled Judge Walton, it could be a basis for an increased sentence under that provision. I suspect it's unlikely a judge can increase a defendant's sentence for exercising his Fifth Amendment right, but then, defendants are penalized all the time for just going to trial, so an increased sentence for invoking a constitutional right is nothing new.
General Douglas MacArthur once said that "old soldiers never die, they just fade away." The end of the Libby trial certainly has the feel of a proceeding just fading away. Closing arguments are set for Tuesday, February 20, and the case will likely go to the jury shortly thereafter. Then, the really boring part begins -- waiting for a verdict. (ph)
Wednesday, February 14, 2007
I. Lewis Libby made it official in responding to a question by U.S. District Court Judge Reggie Walton that he decided against testifying in his perjury, obstruction, and false statements trial. While once almost a foregone conclusion that Libby would take the stand to offer his memory (or "dedicated but overworked public servant") defense, his lawyers have succeeded in getting at least some information before the jury about how busy he was during the relevant time. John Hannah, Libby's successor as Vice-President Cheney's national security adviser, testified that Libby was very forgetful -- what a surprise -- and that he dealt with a wide variety of pressing issues that could easily distract him. Earlier media witnesses testified that Libby did not tell them about Valerie Plame's status with the CIA, apparently to buttress the claim that he did not speak to anyone about her because he did not know her role (except for the forgotten information from Vice-President Cheney). Another potential witness who will not be called is the Vice-President, who may have done Libby harm regarding the focus on Joseph Wilson's charges against the Adminnistration. While the outlines of Libby's defense have been presented to the jury, an AP report (here) states that Judge Walton will not allow references to whether Libby considered the Niger trip of Wilson, Plame's husband, to be something of importance because only Libby can testify as to what was on his mind, and that won't be happening now.
The decision whether to testify, particularly in a white collar crime case, is always risky, and there is no template to tell a witness or defense counsel which is the better course. The list of cases in which a defendant testified and was convicted (e.g. Bernie Ebbers, Jeffrey Skilling) can be matched by those who did not and were acquitted (e.g. Richard Scrushy). The jury's verdict will be ascribed, at least in part, to this decision, so if there's a conviction the defense lawyer will be wrong either way, while an acquittal will be attributed to the prescience of the decision. (ph)
Saturday, February 10, 2007
The government rested its case against I. Lewis Libby, winding up the testimony with Meet the Press host Tim Russert, who Libby identified in the grand jury as the source of his knowledge about Valerie Plame's status as a CIA operative -- or at least the second source after Vice-President Cheney. Russert flatly contradicted Libby's statements to the FBI and grand jury, stating that he had never heard of Plame until he read Robert Novak's column a few days later, the item that touched off the long-running investigation of the leak. Special Counsel Patrick Fitzgerald offered six witnesses from the Bush Administration who testified about conversations with Libby in which they informed him about Plame, and three journalists testified they received information from Libby about Plame. Is that too much evidence for Libby to overcome with his "honest but overworked public servant" defense that claims he simply forgot about these conversations?
While the defense may be viewed as a bit far-fetched, the government's case is not as airtight as it seems. The problem Fitzgerald faces -- not one of his own making -- is that just about everyone seems to be a liar. In an approach that looks to be all-too-typical of Washington today, the various witnesses appear to have viewed their initial interviews with the FBI (or grand jury) as an opportunity to spin the investigation in a way that made themselves and others look good, apparently on the belief that if the statements were later contradicted they would just move on to a different story. Pretty much standard procedure in a campaign, so why not try it with the investigators?
The first two government witnesses were former State Department official Marc Grossman, a close ally of Richard Armitrage, another leaker about Plame who has not been prosecuted, and former CIA heavyweight Robert Grenier. Each man recounted telling Libby about Plame, yet when each initially spoke with the FBI they made no mention of that fact. Now, it could be that they simply didn't recall who they spoke with about what, and only focused on Libby later, but isn't it odd that each neglected to mention Libby and then later had almost complete recall of multiple conversations? Former White House spokesman Ari Fleisher took the stand with a "pig in a poke" deal from Fitzgerald (see earlier post here) in which he refused to make any statement before receiving immunity -- not the type of witness who makes you comfortable with his recall when he demanded the prosecutor trust him blindly.
The media witnesses where hardly much better. Former New York Times reporter Judith Miller, a key component in the case, spent 85 days in jail for refusing to testify before the grand jury about her conversations with Libby because she had promised him confidentiality. In her first appearance before the grand jury, Miller testified as to her July conversation with Libby, but not about a June discussion that included Plame's CIA role. Only after Fitzgerald showed her notes of the conversation did she now recall that earlier conversation, offering the excuse that if she didn't write a story about it she didn't remember the details. A juror asked a question (through the judge) about whether that was her standard procedure. Sitting in a jail in Alexandria for civil contempt because of your conversations with a senior administration official would seem to be a good time to try to remember everything about the case, because there isn't that much else you can do there. How did an important detail of a relationship that could have landed Miller in jail for upwards of eighteen months slip her mind?
Tim Russert had his own problems, this time almost the opposite of the "forgetful first FBI interview" scenario. When first approached by an FBI agent, Russert willingly recounted his conversation with Libby. Later on in the investigation, he refused to cooperate with the grand jury and insisted that his source was confidential. Russert also went on the Don Imus radio program and, according to reports of his interview, sounded almost exultant at the prospect of Libby being indicted. Hardly the neutral journalist whose only interest is the truth. But then, the testimony from Vice-President Cheney's media adviser, Cathie Martin, was about how the Administration sought to manipulate the media, so truth takes a back seat to access, sources, and spin.
I'm not so naive as to think most (or even many) people tell the truth in Washington. But the government's case is built on people who made statements that strain credulity, and worked to manipulate the truth. In that maelstrom of misinformation, can a jury find Libby guilty? The burden of proof is on the government, and the issue is not whether Libby is innocent. In an earlier post, I questioned whether Libby could avoid taking the witness stand -- Is Libby Backpedaling? -- but now I wonder whether he should testify. Ted Wells, one of Libby's defense lawyers, has made a name for himself by successfully representing high-profile political defendants like former cabinet members Ray Donovan and Mike Espy in cases in which they did not testify. The problem for Libby may be his grand jury testimony in which he says he first learned about Plame's identity from Vice-President Cheney, forgot the information, and then had it replanted by Russert. Again, hardly the stuff of a credible witness. But perhaps a defense tactic of "a pox on all the liars" would work. The argument could be that Libby may have bent the truth, but so did everyone else it seems who found himself or herself in the same room as an FBI agent or grand juror, so how can we say he committed perjury, made false statements, and obstructed justice? That might result in a not guilty verdict. (ph)
Wednesday, February 7, 2007
All along, defense counsel for I. Lewis Libby proclaimed that he would testify in his defense at trial to advance the position that any misstatements in his grand jury testimony and to the FBI were the product of a faulty memory -- the "dedicated but overworked public servant" defense. It now appears that Libby may not testify at trial, as discussed in his brief filed with the District Court on February 5 (available below). It states, "We emphasize that at this point Mr. Libby has not decided whether he will testify." The brief seeks the admission of three categories of national security information at trial to show the types of information innundating Libby around the time that he spoke with reporters about Valerie Plame's CIA status. The government's position is that if Libby does not testify, then the evidence should not be admitted because it is irrelevant. Libby argues that denying admission of the evidence would infringe on his Fifth Amendment right against self-incrimination and Sixth Amendment right to present a defense.
The interesting question is why the defense appears to be backpedaling from its earlier position. A faulty memory defense is difficult to establish without the defendant's testimony because there is no witness who can say what the defendant did and did not remember, or why the person was distracted. Offering evidence of what could have occupied Libby's attention may not be admissible without his testimony as to what exactly he was focusing on, and how he could have made the mistake regarding his conversations with the reporters. The District Court may not allow evidence to show what might have been on his mind. Defenses centered on the defendant's lack of intent often pressure the person to testify, and it is not uncommon that evidence is excluded because it would allow the jury to speculate.
In a sense, Libby has already testified because Special Counsel Patrick Fitzgerald played approximately eight hours of the grand jury testimony that is the basis for the perjury charge. I have not heard of a perjury case in which that much testimony of the defendant's testimony was provided to the jury, although it may happen in other cases. The government's strategy in offering the entire body of testimony may be to put Libby in a position where it is too dangerous for him take the witness stand in his defense. Having heard the explanations to the grand jury, it would be difficult for him to take a different position at trial, and he opens himself to the possiblity of being impeached by any inconsistency between the trial and grand jury testimony. Libby's brief stating that he may not testify could be an acknowledgement that the government's tactic has effectively prevented him from testifying.
His brief states that "any errors in his statements and testimony resulted form confusion, mistake, or faulty memory rather than deliberate deception." The government's witnesses testified that they provided the information about Plame to Libby, and he was rather insistent about rebutting the charges made by her husband, Joseph Wilson. Asking the jury to find "confusion, mistake, or faulty memory" when they've heard the grand jury testimony but without hearing from Libby may well be impossible. (ph)
Wednesday, January 31, 2007
The new contract Barry Bonds agreed to with the San Francisco Giants that will pay him $15+ million has an unusual clause allowing the team to void the contract if he is indicted for perjury in the ongoing Balco (Bay Area Laboratory Co-operative) steroids investigation. Some baseball contracts permit a team to back out if a player sustains a certain type of injury, such as the recent contract J.D. Drew signed with the Boston Red Sox relating to a previously-injured shoulder. Baseball also has a "good conduct" requirement, but a criminal indictment alone would not necessarily keep him from pursuing Hank Aaron's home run record.
Bonds has been under investigation for nearly two years for possible perjury related to his grand jury testimony in 2003 in which he denied knowingly taking steroids. Another issue that emerged relates to possible tax evasion for not reporting income from autograph signings and memorabilia sales. Whether Bonds is charged is very much an open question since the U.S. Attorney for the Northern District of California, Kevin Ryan, lost his position. That change raises doubts about whether new leadership in the office will continue to pursue a case that has already triggered civil contempts and appeals to the Ninth Circuit for three witnesses who have refused to testify: Bonds' former trainer and two San Francisco Chronicle reporters.
It could be, though, that the Giants know something about the direction of the case. In July 2006, the team submitted Bonds' medical records to the grand jury, and a team physician and trainer testified. It is not clear whether the contract provision will pass muster with the players union or the Commissioner's office, so it may come to naught. A Chronicle story (here) discusses Bonds' new contract. (ph)
Special Counsel Patrick Fitzgerald opened the prosecution's case-in-chief with five high-level government witnesses, including former White House spokesman Ari Fleischer, who each testified to having given I. Lewis Libby at least some information about Valerie Plame's role as a CIA operative. The trial has now switched to the media witnesses, beginning with New York Times reporter Judith Miller, who testified that Libby first spoke to her about Plame on June 23, 2003 -- the twenty-first anniversary of the famous "smoking gun" conversation between President Nixon and H.R. Haldeman about covering up the Watergate break-in. As with the earlier witnesses, Miller had some recall problems in her earlier grand jury testimony when she did not mention this meeting with Libby the first time she testified. According to an AP story (here), Libby's counsel, William Jeffress, asked Miller about her inability to recall the meeting until reviewing her notes, and she responded that "it's really easy to forget details of a story you're not writing." How she could have missed this "detail" entirely, at least for a time, is a bit mystifying, if you will, given that Miller spent 85 days in jail for civil contempt for refusing to testify about her discussions with a secret source who turned out to be Libby.
Like so much in this trial, it is the details of the story that will tell the tale, and Miller palming off a lapse of memory like this may not play well with the jury. Nevertheless, the drumbeat of witnesses from inside the Administration and in the media saying the same basic thing, that Libby told (or questioned) them about Plame's CIA status, will make it difficult to mount successfully a "gosh, it must have slipped my mind when I spoke with the FBI and testified before the grand jury" defense. The case remains a credibility battle, and the stakes will go up with each additional witness who says Libby raised the issue of Plame's role at the CIA first. (ph)
UPDATE: For an interesting first-hand perspective on Miller's testimony, including an issue related to questioning her about confidential sources, check Jeralyn Merritt's thorough post on TalkLeft (here).
Friday, January 12, 2007
The upcoming trial of I. Lewis Libby promises to be the biggest political trial since the impeachment proceeding of President Clinton, and U.S. District Judge Reggie Walton has set forth the ground rules for the proceeding in an order available below (courtesy of TalkLeft). Among the issues treated in the order are seating arrangements in the gallery, what types of equipment may and may not be brought into the courtroom (e.g. no camera-equipped cell phones), and when everyone has to be seated or lose their spot. Judge Walton has imposed a gag order on the attorneys for the government and Libby: "The Court expects counsel not to make comments to the media. The Court will not tolerate any attempts to have this case tried in the media." That's no fun. Unlike some other districts, the District of Columbia does not prohibit contact with jurors after the trial is completed, although the order notes that "they are not obligated to do so and there must not be further attempts to talk to jurors who have indicated a desire not to have such discussions."
On the subject of the media at the trial, the Washington Post reports (here) that among those who will have reserved seats in the gallery will be two bloggers. The article gives a less-than-complimentary view of bloggers, asserting that "[t]he common journalistic practices of verifying facts, seeking both sides of a story and subjecting an article to editing are honored mostly in the breach. Innuendo and rumor ricochet around the Internet as blogs link from one to another, at times making defamatory voices indistinguishable from the many others involved in this experiment of free expression." I'm sure the author would be a big fan of this blog, however.
The Houston Chronicle's trial blog by its reporters during the prosecution of Ken Lay and Jeffrey Skilling was an invaluable resource, with up-to-the minute reporting of the proceedings and discussion of the courtroom atmosphere that went beyond what would appear in most newspaper articles. Let's hope that the bloggers and the rest of the media live up to that standard in their reporting. (ph)
Friday, December 22, 2006
A Yahoo.Com story (here) states that a former defense attorney for Balco (Bay Area Laboratory Co-operative) founder Victor Conte leaked the grand jury testimony of San Francisco Giants slugger Barry Bonds and perhaps other major league players who testified into the investigation of steroid manufacturing. Two San Francisco Chronicle reporters, Mark Fainaru-Wada and Lance Williams, published excerpts of the testimony, including Bonds' statement that he unknowingly took steroids in 2001. The lawyer, identified as Troy Ellerman, represented Conte and another Balco executive in the criminal case, although Conte switched lawyers in March 2005 and eventually agreed to a plea bargain. A former investigator who shared an office with Ellerman asserts that the lawyer disclosed the transcripts in 2004 to the Chronicle. In addition to his legal practice, Ellerman is the commissioner of the Professional Rodeo Cowboys Association.
The grand jury transcripts were likely supplied to defense counsel after the 2004 indictment of five defendants with Balco connections, including Conte and Bonds' former personal trainer, Greg Anderson. They may have contained Brady material, and so prosecutors had to disclose them to the defense, but that disclosure would have included significant restrictions on any pre-trial use of them. If Ellerman leaked the documents, it would in all likelihood violate a court secrecy order and could subject him to a contempt proceeding, although not under Federal Rule of Criminal Procedure 6(e)(7) because defense lawyers are not covered by the grand jury secrecy rules.
An interesting question is whether the two Chronicle reporters can avoid jail for contempt if Ellerman is the source for their stories recounting the grand jury testimony. Fainaru-Wada and Williams refused to testify about the identity of their source before the grand jury investigating the leak, asserting the journalist privilege to maintain the confidentiality of sources; the contempt issue is currently before the Ninth Circuit. While reporters have been unsuccessful lately in fighting demands for testimony about their confidential sources, there may be no need to obtain testimony from the reporters now and the contempt citation could be vacated. That would certainly be a nice holiday gift for Fainaru-Wada and Williams. (ph)
Saturday, December 16, 2006
The Balco (Bay Area Laboratory Co-Operative) steroids investigation has entered what U.S. Attorney Kevin Ryan called the "third stage" with the indictment of Tammy Thomas, a former cyclist banned from competition for steroid use. Thomas testified under a grant of immunity in 2003 before the same grand jury that heard from a number of prominent athletes, including famed San Francisco Giants slugger Barry Bonds and Olympic gold medalist Marion Jones. According to the indictment (here), Thomas committed perjury by denying she received the designer steroid THG, known as the "the clear," from Balco chemist Patrick Arnold, who entered a guilty plea earlier in 2006 to conspiracy and money laundering charges. The indictment quotes the relevant testimony for count one:
Q: Did you ever – besides this one instance of getting the 1-AD from Mr. Arnold, did you ever get any other services from Mr. Arnold or products?
(a) A: No, no other products.
* * * * *
Q: Did you ever, in addition to anything I’ve said, get any kind of what you knew to be banned or illegal performance-enhancing drugs from Mr. Arnold?
(b) A: No.
In another exchange quoted in the indictment, she denied ever taking steroids or taking anything that Arnold gave her. Thomas tested positive for steroids in 2002,leading to her ban from competition. The key witness appears to be Arnold, which means that the case could come down to a credibility battle between Thomas and an admitted felon.
U.S. Attorney Ryan hinted in a press release (here) that more perjury indictments may be coming. He said, "“In the early stages of the investigation, the individuals who distributed steroids to some of the nation’s top-flight athletes were indicted and convicted. In the second stage, we developed the evidence to indict and convict the creator of the undetectable steroid THG distributed through Balco. A third stage has begun as we bring charges against individuals who lied to investigators or committed perjury while testifying under oath to a federal grand jury. Our investigation into each of these stages will continue as the evidence develops." In addition to Thomas, the grand jury earlier indicted Trevor Graham, Jones' former coach.
Bonds has already been the subject of serious speculation about a possible perjury and tax evasion indictment, the latter based on unreported income from memorabilia sales. When the earlier Balco grand jury expired in July 2006, many thought its last act would be to indict Bonds, but right before its expiration, the Giants released his medical records, so White's office announced that nothing would be done at that time. Bonds' former personal trainer, Greg Anderson, remains in jail on a civil contempt because of his refusal to testify about Bonds' use of steroids; Anderson was affiliated with Balco and entered a guilty plea to a drug charge related to steroid distribution. A San Jose Mercury News article (here) quotes Bonds' attorney stating, "If this is phase three, why not indict Barry?' The simple answer -- they need the testimony of Greg Anderson.''
It's not clear how important Anderson is to the case, but he could certainly help the government by identifying Balco documents that apparently indicate a schedule of steroid use by Bonds. If the perjury case rides on Anderson, the government will not be in a very strong position unless it has powerful documentary evidence to support its position. Anderson is unlikely to be a very convincing witness, or perhaps not a very trustworthy one.
In addition to Anderson, two San Francisco Chronicle reporters are fighting a contempt citation in the Ninth Circuit for refusing to testify before the grand jury about the leak of transcripts of Bonds and other major league players. The perjury stage of the investigation has generated a significant amount of litigation already, and the U.S. Attorney's Office for the Northern District of California has not been shy about pursuing perjury and contempt cases, so look for more to come. Whether higher-profile athletes like Bonds, Jones, or perhaps others are charged could play out over the next few months. (ph)