Friday, August 10, 2012
The BLT reports here on the amicus brief filed by former federal prosecutors and judges in Ali Shaygan v. United States. At issue is whether the government can be fined and sanctioned under the Hyde Act, which covers vexatious, frivolous, or bad faith prosecutions, when the charges brought have an objectively reasonable basis in fact. In other words, can federal prosecutors act out of improper motives of bad faith and malice if they have a pretextual fig leaf to cover their actions? The WSJ Law Blog reports here on the brief, which was signed by yours truly, and greater lights.
Tuesday, August 7, 2012
And there it is. Right on page 24 of the Second Circuit's opinion in U.S. V. Mahaffy, posted here yesterday. "None of this [the government's various rationales for withholding exculpatory and/or impeaching SEC transcripts] excuses the government's misconduct. The transcripts contained substantial Brady material, much of which was easily identified as such." In fact, an SEC attorney, cross-designated as a Special AUSA in the first squawk-box trial, identified some of the material as potential Brady to his trial team superiors before the first trial commenced.
Here are some interesting dates. Jury selection in the squawk-box retrial began on March 30, 2009. The government rested on April 14, 2009, as did the defense. The jury returned its verdict on April 22. Ted Stevens had been found guilty in Washington DC in October 2008 and, as Judge Sullivan has noted, "[d]uring the course of the five-week jury trial and for several months following the trial there were serious allegations and confirmed instances of prosecutorial misconduct that called into question the integrity of the criminal proceedings against Senator Stevens." Attorney General Holder moved to set aside the Ted Stevens verdict and dismiss the indictment with prejudice due to gross Brady-related misconduct on April 1, 2009. Judge Sullivan granted the government's motion on April 7, 2009. According to the Mahaffy opinion, the second set of squawk-box prosecutors deliberately chose not to revisit any of the disclosure decisions made by the first trial team. New York prosecutors must not read the DC papers.They did not start to sift through the SEC transcripts until after the second trial concluded.
Monday, August 6, 2012
Here is the Second Circuit's opinion (U.S. v. Mahaffy) from last Thursday in the EDNY's Squawk-Box case, vacating the convictions due to Brady violations and an untenable honest services jury charge.
Thursday, June 28, 2012
Today's New York Times was a virtual treasure trove of white collar crime stories. Among them were the following:
"South Carolina House Panel to Hear Ethics Complaints Against Governor" (see here) - South Carolina Governor Nikki Haley is facing a legislative hearing on whether she acted unethically during her term in the legislature when she was paid $110,000 annually as a fundraiser for a hospital whose legislative goals she advocated. Knowing nothing about South Carolina legislative ethics rules or criminal law, I do not venture to opine whether the Governor did anything improper. However, the broad facts here are strikingly close to a series of cases in New York in which a hospital CEO, a state senator and a state assemblyman all were convicted and went to prison. See here. It seems to me there should be a restriction against a legislator working for an entity, at least in a loosely-defined job such as consultant or fundraiser, and advocating or supporting favorable legislation for that entity.
* * *
"Madoff's Brother Sets Plea Deal in Ponzi Case" (see here) - Peter B. Madoff, the brother of Bernard Madoff and the No. 2 man at Bernard L. Madoff Investment Securities, will reportedly plead guilty tomorrow to falsifying documents, lying to regulators and filing false tax returns. Peter Madoff reportedly served as the nominal compliance officer of his brother's wholly-owned securities firm and apparently exercised little or no oversight of the firm's operations, thereby providing his brother the freedom to steal billions.
Placing an investment firm's proprietor's brother as compliance officer is akin to asking the fox to guard the henhouse. It seems there should be, if there is not, a law, rule or regulation prohibiting a close relative, like a spouse, parent, child or sibling, from being the responsible compliance officer in a substantial investment firm owned entirely (as here) or largely by one's relative.
* * *
"JP Morgan Trading Loss May Reach $9 Billion" (see here) - The amount of JP Morgan's trading losses from its London office could be as much as $9 billion -- four and one-half times as much as the company announced originally. While JP Morgan has in view of its considerable profits downplayed the magnitude of the loss, which its chief executive officer Jamie Dimon estimated in May could possibly be as much as $4 billion, obviously a $9 billion loss takes a much greater bite out of the firm's profitability, and conceivably may even raise some questions as to the firm's viability.
We now know, in the wake of bailouts and government support, that the federal government is both the de facto and de jure insurer of major banking institutions. One might ask whether a government insurer, like a private insurance company, should not be able to set specific rules to curb risky activities which might trigger the insurer's support. To update Congressman Barney Frank, there are now nine billion more reasons for increased governmental regulation.
* * *
Like many other white collar defense lawyers, I am strongly against overcriminalization. On the other hand, I am equally strongly against underregulation. One of the principal reasons I favor greater and clearer rules and regulations is to give potential white-collar offenders reasonable notice of what is criminal and what is not, and not leave that decision, as frequently happens now, to a federal prosecutor's interpretation of the amorphous fraud laws.
A significant portion of the white-collar defendants I have represented in the last forty years, including many of those who were convicted, have actually believed that their actions were not criminal. In some cases, this was simply because they lacked a moral compass. In the financial world, where the primary, and often sole, goal is to take other people's money away from them, many people do not consider whether what they do is morally right or wrong, or are so amoral that they are incapable of making that distinction. Tighter regulation will at least tell them what is prohibited and what is not.
Wednesday, June 27, 2012
A DOJ Press Release reports, Barclays Bank PLC Admits Misconduct Related to Submissions for the London Interbank Offered Rate and the Euro Interbank Offered Rate and Agrees to Pay $160 Million Penalty
Some highlights of the press release -
- "Barclays Bank PLC, a financial institution headquartered in London, has entered
into an agreement with the Department of Justice to pay a $160 million penalty
to resolve violations arising from Barclays’s submissions for the London
InterBank Offered Rate (LIBOR) and the Euro Interbank Offered Rate (EURIBOR),
which are benchmark interest rates used in financial markets around the world..."
- "To the bank’s credit, Barclays also took a significant step toward accepting
responsibility for its conduct by being the first institution to provide
extensive and meaningful cooperation to the government."
- "Barclays’s cooperation has been extensive, in terms of the quality and type of
information and assistance provided, and has been of substantial value in
furthering the department’s ongoing criminal investigation."
- "The agreement requires Barclays to continue cooperating with the department in
its ongoing investigation."
- "As a result of Barclays’s admission of its misconduct, its extraordinary
cooperation, its remediation efforts and certain mitigating and other factors,
the department agreed not to prosecute Barclays for providing false LIBOR and
EURIBOR contributions, provided that Barclays satisfies its ongoing obligations
under the agreement for a period of two years. The non-prosecution agreement
applies only to Barclays and not to any employees or officers of Barclays or any
Commentary - As a non-prosecution agreement it does not go through the courts and DOJ has the power to enforce or proceed should it believe there is a violation of the agreement. It also sounds like the white collar defense bar may have some new clients as the government has secured the cooperation of the company to go after individuals.
See also Jenna Greene, BLT Blog, Barclays Agrees to Pay $360M to Settle with CFTC, DOJ
over Interest Rate Manipulation
Wednesday, June 20, 2012
AG Holder has issued a statement in response to the House Panel Vote (on party lines) to recommend holding him in contempt for not providing items to the committee -
In his statement, Holder states-
“In recent months, the Justice Department has made unprecedented accommodations to respond to information requests by Chairman Issa about misguided law enforcement tactics that began in the previous administration and allowed illegal guns to be taken into Mexico. Department professionals have spent countless hours compiling and providing thousands of documents -- nearly 8,000 -- to Chairman Issa and his committee. My staff has had numerous meetings with congressional staff to try and accommodate these requests and yesterday, I met with Chairman Issa to offer additional internal Department documents and information that would satisfy what he identified as the Committee’s single outstanding question." (more here)
Tuesday, June 5, 2012
The Fifth Circuit affirmed the convictions and sentences in U.S. v. Brooks, a case involving alleged "false reporting of natural gas trades in violation of the Commodities Exchange Act and the federal wire fraud statute."
Although the court distinguishes the Stein decision from the Second Circuit with the facts in this case, both cases had individual defendants who had their attorney fees cut off. In Brooks, the defense claimed it was from government pressure, but the Fifth Circuit said the factual findings were not present to confirm this conduct. The court found that the company's policy on payment of attorney fees was a discretionary policy. But when a company gets a deferred prosecution agreement one has to wonder if there is an incentive to show cooperation, albeit payment of attorney fees can not be a factor used.
There is also an interesting question of what constitutes "reports" for purposes of the CEA or CFTC regulations. This is an intriguing issue as one is basically violating federal law through a submission document. The Fifth Circuit rejected a void for vagueness argument here.
The Fifth Circuit also found the Fifth Circuit Pattern Jury Instruction as meeting the recent Supreme Court decision in Global Tech, although they admit it does not use the same language. The question here is whether deliberately closing one's eyes is the same as taking "deliberate actions to avoid learning of the fact," the test set forth in Global Tech. I see a difference in that one is passive and the other is active. The Court seems to be satisfied with the evidence in this case, but one has to wonder if the Fifth Circuit should be quickly looking to change its pattern jury instruction to avoid this issue in future cases.
Then there is the question of defense witness immunity. A witness is on the prosecution witness list and is not called to testify because the prosecution has concerns about the witnesses truthfulness. The witness has not yet been sentenced (the government postponed sentencing for 39 months- obviously to be after this trial) and decides to take the Fifth Amendment. The prosecution called the witness the evening before the witness was to testify, but says the call was to determine if they needed to prepare the witness for cross-examination. The defense argues that the witness has exculpatory evidence for the defense. The defense asks for defense witness immunity and doesn't get it. One has to wonder whether the jury really had full information to resolve guilt or innocence? But the Fifth Circuit held otherwise.
And this is not a case where defendants are receiving light sentences. All the defendants were level one and yet all of their sentences exceeded 11 years imprisonment, with one receiving a 14 year sentence. Whoever thinks white collar offenders are getting off easy, needs to just look at this case to see that this is not the situation.
Thursday, May 31, 2012
As noted here, John Edwards was found not guilty on one count, and the jury was unable to reach a verdict on the remaining counts. Prosecutors should now move on and not retry Edwards on these remaining counts.
The government has expended enough taxpayer money on this case and Edwards most likely has had to incur the cost of his defense. Prosecutors have already hurt Edward's reputation with the evidence presented at trial - so there is no punishment basis for proceeding further. Evidence not presented at trial left the murky question of whether this money was even a political contribution, and the testimony of Federal Election Commissioner Scott E. Thomas that was not heard by the jury raises additional issues on campaign contributions. But the place to resolve this is not in the criminal courtroom. More importantly, if skilled folks can differ on this question then one certainly should not hold someone criminally liable.
No one walks out unhurt by this trial. And that is the huge cost that comes with a prosecution. It is for this reason that prosecutors need to consider carefully prior to charging anyone with criminal conduct.
Tuesday, May 29, 2012
I have not read the 672-page Department of Justice report finding that federal prosecutors Joseph W. Bottini and James A. Goelke acted recklessly -- but not intentionally -- in withholding exculpatory information from Sen. Ted Stevens at his trial for corruption. Nor have I read the 525-page Scheulke/Shields report commissioned by Judge Emmet Sullivan that concluded to the contrary that their misconduct was intentional. I therefore am hesitant to say that the DOJ finding was wrong.
I have little hesitancy, however, in criticizing the lenient punishment meted out by DOJ. Bottini was suspended without pay for 40 days, Goelke for 15. Even if, as the DOJ report contends, they did not act intentionally but did act with "reckless disregard" of their constitutional obligations to provide exculpatory evidence, the slap on the wrist of a loss of net income from $5,000 to $12,000 respectively (along with a compensating two to seven weeks of extra vacation) appears inappropriate.
The determined "reckless" conduct was, among other things, the failure to disclose evidence concerning Stevens' willingness to pay for the renovations in question, and a contractor's expectation that the cost of the renovations would be added to Stevens' bill, evidence central to the case. Its disclosure might well have prevented Stevens' conviction, loss of reputation and Senate seat, and (but for his death in a plane crash) probable imprisonment.
If a truck driver causes serious personal injury by reckless driving, is there any doubt he would be fired? The injury to Senator Stevens was serious; the punishment was far too gentle.
* * *
In a way, the finding of reckless misconduct reflects worse on DOJ than a finding of intentional misconduct. According to the DOJ report, these were not rogue prosecutors deliberately concealing evidence. Rather, they were seasoned and respectable prosecutors who recklessly ignored a most basic constitutional obligation, not to conceal exculpatory evidence. The finding leads to serious questions about DOJ's training and professionalism and leads me to wonder (again) how many serious Brady violations by other seasoned and respectable prosecutors go undetected.
Friday, May 25, 2012
The DOJ filed a motion to voluntarily dismiss (Download USA v Lindsey, etc., et al.___ecf.ca9.uscourts) in the U.S. Court of Appeals for the Ninth Circuit the FCPA case involving Lindsey Manufacturing Co., its CEO and CFO. The government had filed an appeal on December 1, 2011 following an Order of District Judge Howard Martz, who ruled that the Lindsey prosecution had been tainted by a pervasive pattern of flagrant government misconduct. Contributing Blogger Solomon Wisenberg posted here excerpts from this initial Order. By today's dismissal, the government is finally dropping this prosecution and it also ends the efforts to get the company to forfeit $24 million.
Attorney Jan Handzlik of Venable LLP stated, "This is a great day for the fair administration of justice. We couldn't be happier for Keith, Steve and the 110 loyal, hard-working employees of Lindsey Manufacturing Company. This dismissal further vindicates Dr. Lindsey's belief in our system of justice and in his innocence. Keith and Steve were steadfast in their belief that the government had not played fair and that the truth would come out."
Congratulations also go to Janet Levine (CrowellMoring), who also represented an accused in this case. Both Jan Handzlik and Janet Levine were the inaugural recipients of the White Collar Criminal Defense Award given at the NACDL White Collar Criminal Defense College at Stetson (see here).
The Statement of Williams Connolly LLP, through Rob Cary, Brendan Sullivan, and Simon Latcovich, truly speaks for itself. We will have more to come on the DOJ's actions.
Thursday, May 24, 2012
The Department of Justice yesterday announced the indictment of four Georgia residents for tax fraud. The press release (see here) stated, as is required by the ABA Fair Trial and Free Press Standards, ". . . the defendants are presumed innocent until proven guilty beyond a reasonable doubt." Nonetheless, the headline read "Georgia Tax Cheats Indicted for Conspiring to Defraud the United States," certainly not affording these defendants the presumption of innocence to which the DOJ release paid lip service.
The indictment was announced by the new Assistant Attorney General of the Tax Division, Kathryn Keneally, until recently my able and respected colleague in the New York City criminal defense bar. My assumption is that AAG Keneally neither wrote nor reviewed the headline.
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.
Saturday, May 19, 2012
Sitting on the bench in a high profile case is not easy on any lawyer or the judge for that matter. Everyone is scrutinizing your motions, your rulings, and even what you may be wearing. Co-blogger Solomon Wisenberg noted here how the judge has the ability to move the Clemens trial along. This may be true - but I am not sure that he should.
Giving time for each attorney to state their objections, restate their objections, preserve the record, and yes, restate them even again, is important for everyone. Judge Walton is noted for giving defendants a fair trial - albeit he is also known for being tough if one is convicted. This is all the more reason to make sure that everything is properly on the record, should the defense be unsuccessful at trial.
I am firmly convinced that when prosecutors or defense counsel deliberately clog up a case with needless motions and objections, the jury may eventually catch on. And when prosecutors deliberately attempt to break the stride of the defense counsel or weaken the presentation with objections and distracting arguments, don't always assume it will benefit the prosecution. And keep in mind, that if there is a conviction the appellate court gets to read the entire record and they will have the opportunity to see the motions being made, the arguments supporting the motions, and they will have the opportunity to discern whether one side was deliberately wasting time with worthless motions.
So making sure everything is on the record, and that all arguments are heard is not such a bad thing.
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
Some years ago, I represented a landlord who was indicted and convicted for offering a bounty to a thug if he beat up the leader of the tenants' committee, which was opposing a rent increase. This behavior does not seem all that much different from what the National Football League has alleged New Orleans Saints linebacker Jonathan Vilma did. Vilma, four other players, and his coach Sean Payton and others, have been disciplined by NFL Commissioner Roger Goodell for allegedly conspiring to offer rewards to teammates to maim opposing players, particularly star quarterbacks.
News about this alleged conspiracy has been widely publicized, but I have yet to read of any current or impending federal or state criminal or legislative inquiry. While certain violence in football is accepted, deliberate maiming goes beyond any acceptable norms. Nonetheless, it would not surprise me that neither federal nor state prosecutors, especially in the New Orleans area, where Vilma and his alleged player co-conspirators played, view such an investigation as crowd-pleasing. Realistically, it is quite possible that a New Orleans jury would nullify and acquit Vilma even if there were convincing evidence against him.
In virtually every other area of business activity where there is a tenable allegation that a person had conspired to maim a competitor or opponent, there would be a serious prosecutorial investigation. In sports, what is ordinarily considered criminality, at least physical criminality, is often given a bye.
One might think that Congress has a legitimate reason and special responsibility to investigate alleged orchestrated maiming in professional football, a national sport/business. The National Football League, as it is now, exists due to Congressional largess. Congress has given the NFL a special exemption to antitrust rules which allows it to function as a lucrative monopoly with an all-powerful commissioner. Professional football (which to my wife's chagrin I watch virtually every fall Sunday), if fairly and properly played, is a dangerous game, as reflected by the frequent injuries and limited career span of its players, and the reported unusual rates of early brain damage, suicides and deaths among its retirees. When improperly played -- played with a purpose of injuring others -- it is even more brutal.
Of course, just as an indictment might not be popular with local fans, a Congressional investigation into football brutality would probably not be favorably received by the voters back home, who like their contact sports (at least professional sports) such as football and hockey to be rough. Congress appears to be more interested in whether baseball players engage in taking illegal drugs, which, if it harms anyone, hurts only themselves or perhaps also competing players who perform at a comparative disadvantage without such presumed aids. Such an investigation also continues to feed the anti-drug attitude Congress has fostered and to justify the harsh drug laws Congress has enacted. Of course, Congress might also be gunshy in view of the embarrassment that the baseball steroid investigation and resulting Roger Clemens trial became.
This is not to say that I presume Vilma is guilty. I have not seen or heard any concrete evidence that he in fact did orchestrate a bounty program. The NFL investigation was conducted in secret and with only a sparse controlled public report by the NFL of its findings. Vilma's attorney, in a letter roughly equivalent to a motion for discovery in a criminal case, has asked for 17 points of information. The NFL's response is essentially that its special counsel, Mary Jo White, a respected and liked, and generally prosecution-minded, former United States Attorney, has reviewed the secret evidence and has found it sufficient. The NFL also claims that it had shared some of the evidence with the alleged offenders and the NFL Players Association. The association, while supporting the players' right to arbitration, presumably represents both Vilma and the alleged offenders, and is barely a substitute for a single-minded advocate on Vilma's behalf.
Thus, Vilma, subject to possible reversal by arbitration or court action, will be punished with a suspension of one year (a significant time in a football player's limited career span), and the loss of millions of dollars without even rudimentary due process. And, unlike many persons suspended or fired from jobs, Vilma is practically unable to ply his trade anywhere else besides the monopolistic NFL.
I do not know enough about the NFL's collective bargaining agreement, which apparently allows the Commissioner to be both prosecutor and judge, or about labor law to know whether Vilma has been treated properly. I do, however, have a visceral feeling that he deserves more rights than a secret investigation and a conclusory decree by a commissioner with dictatorial power.
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.
Thursday, May 3, 2012
Two weeks ago Judge Kimba Wood of the Southern District of New York dismissed the indictment in one of the sillier prosecutions brought in that court in recent years. See article here and opinion here - Download Opinion. Julian P. Heicklen, an 80 year-old retired professor, was charged with jury tampering (18 U.S.C. 1503) for distributing at the courthouse steps pamphlets of the Fully Informed Jury Association ("FIJA") that advocated jury nullification.
The pamphlet stated, in part: "You may choose to vote to acquit, even when the evidence proves that the defendant 'did it,' if your conscience so dictates." It also suggested that jurors may choose to be less than candid when asked questions during jury selection about their ability to follow the law as instructed by the judge. It is "your moral choice," the pamphlet stated, whether to "give answers that are likely to get you excused from serving, or say whatever it takes to be selected, so you can do your part to see that justice is served."
Jury nullification, as commonly understood, goes only one way. It allows jurors to ignore their oaths and acquit a defendant even if they are convinced that her guilt has been proven beyond a reasonable doubt. The potential effect of Heicklen's pamphleteering -- if it were to have any, which I question -- would be acquittals (or hung juries) in cases that otherwise would have resulted in jury verdicts of guilty.
The prosecutors in the Southern District were understandably upset. Heicklen was in a sense treading on their turf -- both the courthouse and the law. The prosecutors reacted aggressively, investigating by using an undercover agent and indicting based on an apparently unclear statute and in a bedrock area of First Amendment protection. In court, a prosecutor called Heicklen's advocacy "a significant and important threat to our judicial system."
Rather than the crucial decision to prosecute being made by independent, disinterested prosecutors, as it should always be, here it was made and carried out by the very prosecutors who were in a practical sense themselves the aggrieved parties or "victims." It was their cases -- their convictions -- that Heicklen arguably put in jeopardy by suggesting that jurors might still acquit even if they believed the defendant had been proven guilty beyond a reasonable doubt. The Southern District prosecutors were too conflicted and too involved to be allowed to make the decision whether to prosecute Heicklen (and they were too conflicted and too involved to make a reasoned, dispassionate and intelligent decision). The conflict here was not the potential or hypothetical conflict that prosecutors often argue should disqualify defense counsel, but an actual one. If the prosecutors felt Heicklen should have been prosecuted, they should have referred the ultimate decision to the Department of Justice in Washington. (While I do not know definitively that the Southern District prosecutors did not, if they had, I would have expected that the case would have been prosecuted by Central DOJ lawyers.)
There is an obvious imbalance in the criminal justice system. One litigant, the prosecutor, may charge the opposing litigant with perjury, the litigant's lawyer with obstruction and the litigant's advocate with jury tampering. The other litigant, the defendant (and his counsel), can only howl about agents who lie and prosecutors who secure convictions and jail sentences by concealing evidence. The power of one litigant to protect his case (or cases) by charging one seeking to undermine it (or them) is a drastic one that should be used with care and extreme caution. Here, prosecutorial discretion went awry.
Judge Wood's decision was calm, deliberate, and thorough, considering statutory construction, legislative history, judicial rulings and constitutional implications, and not, at least directly, criticizing the prosecution. Granting the defendant's pre-trial motion to dismiss under Fed. R. Crim. P. 12(b) on the grounds that the facts did not state an offense, she ruled that the statute was limited to advocacy relating to a specific case, not a general philosophy, as here. Although Judge Wood ultimately relied on a plain language analysis and did not explicitly rule on the First Amendment issue, she indicated that Heicklen's conduct was constitutionally protected free speech.
The case represents governmental overreaching in a sensitive free speech area. Perhaps if the decision whether to prosecute were made at Central DOJ, it would have been different, and the Office of the United States Attorney for the Southern District of New York, a highly respected and effective office, would have been spared an embarrassing defeat (and Mr. Heicklen spared a prosecution, although I suspect he rather enjoyed it).
The ultimate result may be that FIJA now has a license (in the form of a district court decision) to distribute literature suggesting nullification on the steps of federal courthouses, or nearby, throughout the nation. (Judge Wood did recognize that reasonable restrictions on such distribution under other laws may apply.)