Saturday, July 16, 2011

Clemens Error: Deliberate or Inadvertent

The transcript can be found on Talkleft here. Now Talkleft, along with the Daily Beast here and Houston Clearthinkers here present one view to consider in the key issue that remains to be decided by the court.  On the other side you see Tom Schoenberg and Ann Woolner here who say that it is "likely" to be a new trial.  The title to Del Quetin Wilber's story in the Washington Post shows his cards -Veteran prosecutors’ rookie mistake, no-nonsense judge lead to Clemens mistrial.A more neutral stance is taken by TJQuinn at ESPN here. But perhaps this is just a question that is too close to call, even with the replay.

There appear to be basically two violations here: 1) the first one that was being discussed at the bench; 2) the second one when the tape is left in view of the jury while they were discussing this issue at the bench. Both, however, go to whether the prosecution failed to redact the inadmissible parts of the transcript.

You have one prior call by the judge of a violation which goes against the government. (The defense can use this to argue that they were on notice of the judge's ruling). You also have a clear cut present violation of his order and no mea culpa on the spot - although the prosecutor later says that "there was no intention to run afoul of any Court ruling." But the prosecutor also argues that the exhibits were admitted into trial without objection.  The prosecutor even says that "this video clip and this transcript was turned over in early May."  (but wouldn't that have been before the judge's order? )

On the other hand, the defense did not initially object to the admission of the tape and only raises the issue when the judge initiates a discussion of the issue. But then again - the defense did object for the record and move for a mistrial after the judge raises the issue.

But there's another subsidiary issue here.  Did the government not turn over the evidence (a supposedly redacted video) in sufficient time for defense counsel to realize that it had not been redacted? One question is whether counsel in fact traded exhibits in sufficient time prior to trial that the defense could have realized that it was not a redacted tape/transcript and could have objected prior to it even coming in front of the jury. On the other hand, should defense counsel have had to verify everything that was supposed to be done by the court's order. In the transcript the defense says

"...that when the Court makes a ruling on a motion in limine, it's incumbent on the prosecutor to then redact or alter his exhibits, not hand them to counsel and tell us, I'm admitting 3-A through 3-H and expect counsel for the defense to read them in 30 seconds and then move them in. They should have been changed." 

Does this justify a failure to immediately object. And did counsel have the exhibits in advance and just expect that the prosecution would do what the court had instructed.

So one goes in circles until the judge says "stop" and gives us a ruling. And that perhaps resolves this case.  Although, as previously noted, it could go into extra innings if the judge rules against the defense (see here).

I keep wondering if we had better and more advanced (earlier) discovery to the defense if this would have presented as much of an issue.

But I also continue to say to the government that even if this is inadvertent, lets call an end to this game. We have significant crime and limited funds, lets use it wisely.


Addendum - Check out Maureen Dowd's op ed in the NYTimes, Why Are Prosecutors Striking Out?

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As a veteran of a fair number of criminal trials back in the day, I just don't see how the mistake could not be intentional. I know DOJ hardly hires on merit and is full of barely qualified cronies. But even a barely qualified crony doesn't make that kind of a mistake. My best guess is that the government knew they had a weak case. And did this intentionally to deprive Clemmons of the public relations coup of being acquitted. That sounds crazy I know. But DOJ is renown for being mean spirited and pretty dirty players. And I can't see any other explination for the mistake.

Posted by: John | Jul 17, 2011 7:16:38 PM

Even if the prosecutor's conduct was intentional, as Jeralyn Merritt rather convincingly argues at TalkLeft, that doesn't get Clemens a double jeopardy bar to retrial, once his attorney moves for the mistrial. Under Justice Rehnquist's pernicious 1982 opinion in Oregon v. Kennedy (a 5-4 decision), retrial is barred only if the court finds that the prosecutor's intent was to provoke a mistrial. If the prosecutor's intent to win the current trial, albeit by unfair means, a retrial is not barred.

Posted by: Peter G | Jul 17, 2011 8:26:26 PM

This matter can be retried. See Oregon v. Kennedy, S. Ct. 1982. Double jeopardy does not apply unless the prosecution was deliberately goading the defense into moving for a mistrial. Double jeopardy doesn't apply simply because the government engaged in purposeful misconduct. There is absolutely no indication the prosecution was seeking a mistrial, even if its violation of the court's order was intentional.

This isn't a close call

Posted by: weffie | Jul 18, 2011 4:50:45 AM

We have significant crime and limited funds, lets use it wisely. INDEED!

Posted by: P. Aaron | Jul 18, 2011 5:16:35 AM

You have Presidential hopefuls lying to the American public about their net worth - stipulating their monies are in a "Blind Family Trust". The funds are Off SHORE and we are trying to use massive prosecutorial powers to bust a man for using a LEGAL substance because the prosecution gets national press.

What a country!

Posted by: Laser Haas | Jul 18, 2011 1:32:20 PM

It's not just limited funds. Equal justice requires that both the poor and the rich, the low and the mighty, receive equal justice.

One could argue that Leona Helmsley served as an example to others by her tax evasion conviction. But that is not justice. Justice is not a respecter of persons.

However, Clemens and Libby and Martha Stewart and Delay and others only served to enhance the reputation of the prosecutors and sell books for James Stewart. The perjury traps do nothing for the public, and they are not justice. Justice is no respecter of persons.

Posted by: Frank D | Jul 18, 2011 3:01:47 PM

There is absolutely no indication the prosecution was seeking a mistrial, even if its violation of the court's order was intentional...I just don't see how the mistake could not be intentional.

Posted by: android developers | Aug 4, 2011 10:37:18 PM

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