Thursday, February 28, 2008
House Oversight and Government Reform Committee Chairman Henry Waxman and ranking member Representative Tom Davis sent a letter to Attorney General Mukasey asking for an investigation of possible perjury by Roger Clemens about his use of steroids and HGH -- and his attendance at a party in 1998 at Jose Canseco's house. The letter (available below) does not come out and explicitly accuse Clemens of being a liar while under oath during his February 5 deposition or February 13 Congressional testimony, but it does say that "Congress cannot perform its oversight function if witnesses who appear before its committees do not provide truthful testimony. Perjury and false statements before Congress are crimes that undermine the integrity of congressional inquiries. For these reasons, we take evidence that a witness may have intentionally misled the Committee extremely seriously." Of course, Representative Waxman said after the hearing that he regretted even holding it, and nothing of any legislative importance occurred during the session, but thos minor annoyences won't stand in the way of a criminal referral.
What started out as a perjury trap has now been sprung on Clemens, with the FBI sure to begin an investigation because Congress wants one. It was clear that either Clemens or his former trainer, Brian McNamee, was lying because they told diametrically opposed stories. But the question now is whether a federal prosecutor could prove Clemens committed perjury, a much more difficult task than just saying "I don't think he's telling the truth." The Committee also released a memorandum (available below) from the staff that outlines the various contradictions in Clemens' testimony, based largely on the testimony of McNamee and former teammate Andy Pettitte, who discussed two conversations with Clemens about using HGH. The memo contains no new surprises, and sets forth the inconsistencies in Clemens' testimony in great detail.
The problem is that the standard used by the Committee staff is not what a prosecutor must use to decide whether to pursue a case. The analysis points out places where what Clemens said was "implausible" or that certain facts "bolster" McNamee's statements. But a perjury prosecution that will ride on the credibility of McNamee will involve much more than just whether there is a rational basis to believe him rather than Clemens. A criminal prosecution will involve asking a jury to believe that McNamee is truthful, not just plausible.
McNamee admitted during the Committee hearing that he has made a number of inconsistent, or even false statements, in addition to not disclosing the syringes and gauze pads he claims were used to inject Clemens until well after his interview for the Mitchell Report. Pettitte is a more credible witness, but he only remembers two conversations, one of which took place nearly ten years ago. Will Pettitte bring down his old friend, or will he waffle just enough that his testimony might not be sufficiently credible to a jury?
Perjury is among the most difficult crimes to prove because the government must establish that the defendant told an outright lie, and not just that the person dissembled or made statements that seem implausible. The standard for sending a referral to the Department of Justice is quite low, basically something doesn't look right, and an investigation can be initiated just to placate Congress. Even sending out grand jury subpoenas and calling witnesses to testify does not require anything more than a suspicion that wrongdoing occurred, which is certainly the case with the Clemens-McNamee smackdown. But the leap to proving perjury is significant, and as I've said before, if McNamee is the linchpin of the case then it will be a very difficult one to win. (ph)
Saturday, February 16, 2008
The government's response to the motion to dismiss filed by Barry Bonds argues that the indictment is not ambiguous or duplicitous -- yet the filing contains a typographical error that indicated Bonds failed a drug test a year later than alleged in the indictment. If you're going to defend the precision of the charges, then the brief should at least be read carefully enough to ensure it is accurate, or the whole issue of sloppy drafting comes to the surface.
The brief (uncorrected version available below) responds to the defense arguments that the questions are too ambiguous to be the basis for a perjury charge, and that by citing multiple false statements in a single count the charges are duplicitous in violation of Bonds' due process rights. The government's position on duplicity seems to concede that each count could in fact charge separate violations of the perjury statute, but essentially tries to shrug off the problem. According to the brief, "[T]he government may remedy any duplicity in the indictment against Bonds by asking the grand jury to return a superseding indictment charging separate counts for each allegedly perjured statement. Accordingly, rather than electing among the charges in a duplicitous count, the government may elect to obtain a superseding indictment if the defendant is unwilling to remedy any duplicity by agreeing to a jury instruction that requires the jury to be unanimous in finding that at least one of the statements alleged in each count constituted perjury." Thus, if pushed by Bonds (and the court) to cure the duplicity problem, prosecutors may just seek another indictment with more counts of perjury, perhaps as many as ten or twelve.
In arguing that the first perjury charge is not based on ambiguous questions, the brief states, "At trial, the government’s evidence will show that Bonds received steroids from Anderson in the period before the November 2001 positive drug test, and that evidence raises the inference that Anderson gave Bonds the steroids that caused him to test positive in November 2001." The indictment references Bonds failing a drug test in November 2000, but not in 2001. The media immediately picked up on this, but the U.S. Attorney's Office in San Francisco said it was just a typo, that the brief was referring to the November 2000 failed drug test cited in the indictment, and has since filed a corrected version. That type of mistake does not enhance the credibility of the prosecutors, especially when the issue is the clarity of the questions.
The government's primary argument on ambiguity is that the questions are sufficiently clear, although perhaps a bit inartful, and that Bonds never indicated he was confused. Thus, the issue of ambiguity is one for the jury and not for the court. The Supreme Court's seminal decision in Bronston v. United States on perjury, however, makes it clear that a court can decide as a matter of law whether a question is sufficient to be the basis for a perjury charge, and to determine whether the defendant's answer is literally true. That is clearly Bonds' first line of defense, that poor questioning by prosecutors caused him to make statements he did not intend to be false, even if they were a bit misleading. Throw in an attack on IRS Special Agent Jeff Novitzky, the government's lead investigator who was also at the Roger Clemens hearing, as the embodiment of outrageous government conduct, and there may be enough there to raise a reasonable doubt. While it is tough to win dismissal of an indictment at this stage, there may well be some significant reworking of the document because of its drafting problems. (ph)
Thursday, January 24, 2008
Home run king Barry Bonds moved to dismiss the perjury and obstruction of justice indictment (brief available below), asserting that the charges are duplicitous -- one of my all-time favorite legal arguments -- and that the questions posed were so ambiguous that his answers were not false as a matter of law. A count of an indictment is duplicitous when it charges two crimes in a single charge, which is to be distinguished from multiplicity, which is charging the same crime in two different charges. The more common duplicity claim involves two separate crimes charged in one count, but here the claim is that there are different responses that may be untruthful, so that the government has too many potential instances of perjury in each count.
The four perjury counts contain a number of questions and answers, so it is difficult to identify any one with particularity that is perjurious. The problem posed by a duplicitous charge is that there is no way for a jury to convict on one offense and acquit on another offense contained in the same count. Similarly, because the jurors have two crimes to consider in a single count, they may convict without reaching a unanimous agreement on either. For example, if some jurors believe one response by Bonds was untruthful while others believed a second response in the same count was a lie, then they could all agree that he committed perjury but not based on the same answers. The problem a defendant faces when there is duplicity in the charges is that it's not clear which of the statements the prosecution will focus on, and indeed the government could shift its theory in response to the defense.
While Bonds raises a valid point about the number of questions and answers in each count, in the government's defense I suspect prosecutors wanted to provide the context for his answers, many of which are fairly clear denials (i,e. "no" in some instances). Moreover, even if the district court found that the perjury counts were duplicitous, the remedy is usually not dismissal but an order to the government to seek a superseding indictment from the grand jury that cleans up the charges or perhaps a bill of particulars to identify one specific answer in each count that it will prove as perjury. It may be that the government will seek more charges by breaking up the counts, so that rather than facing four counts of perjury, Bonds will face eight or twelve. The motion also attacks the obstruction charge on essentially the same ground.
Bonds' second argument goes to the heart of a perjury charge -- the ambiguity in the questions means that he did not answer the questions untruthfully, or at least did not know his answers were false. The key perjury case is Bronston v. United States, 409 U.S. 352 (1973), in which the Supreme Court held that "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. The burden is on the questioner to pin the witness down to the specific object to the questioner's inquiry." If the questions are ambiguous and the prosecutor does not ask a clear question or seek to clarify the answer, then the defendant cannot be convicted for the responses. Thus, compound questions, and questions using broad terms or imprecise dates, can open the door to a "not guilty" verdict. The problem for Bonds is that the ambiguity defense is usually one left to the jury, and it is the rare case in which a court decides as a matter of law that the questions were so defective that no rational jury could find the answer was untruthful. While this gives us a preview of where the defense is headed at trial, it is unlikely to succeed at this stage of the proceedings.
As often happens when a sports figure is involved in a case, the temptation is to toss in an analogy (or perhaps a simile) to the athlete's sport is just too hard to resist, even if it only causes the reader to groan. In the brief, the attorneys write with regard to the duplicity in the indictment, "Even Barry Bonds cannot be expected to make contact with a fastball, slider, and knuckler thrown him simultaneously." Please, no one this side of Tim Wakefield throws a knuckle ball any more, and the best sucker pitch in baseball is the splitter. Let's hope the government does not respond by likening the defense filing to the typical defensive shift put on when Bonds comes to bat. (ph)
Friday, January 4, 2008
While the odds of this happening are probably no better than 10,000-1, there is always the possibility that home run king Barry Bonds might decide to work out a plea agreement to limit his potential punishment from the perjury and obstruction of justice charges he faces. The prosecution of former Olympic gold medalist Marion Jones may give something of a guide to how Bonds could resolve the case, if prosecutors we willing to go along. Jones agreed to plead guilty to one count of making a false statement in connection with the Balco (Bay Area Laboratory Co-operative) investigation, and she has filed a brief (available below) requesting a sentence that will involve no prison time, only probation. Under the Federal Sentencing Guidelines, the sentence range is 0-6 months, a position the government agrees with. In her filing, Jones' lawyer argues that the District Court should take into consideration the substantial collateral consequences of her guilty plea on her reputation:
The guilty plea in this matter and the circumstances surrounding it have been a very painful and life-changing experience for Marion Jones-Thompson. She has been cast from American hero to national disgrace. This part of her story will forever be one of personal tragedy. To be clear, the public scorn, from a nation that once adored her, and her fall from grace have been severe punishments. She has suffered enormous personal shame, anguish, and embarrassment. She has been stripped of her gold medals, her accomplishments, her wealth and her public standing.
The Supreme Court's recent decision in Gall emphasizing the discretion district judges have to fashion individualized sentences makes this type of argument potentially persuasive, and it would not be a surprise if Jones received probation or, at worst, home confinement. While prosecutors have only recommended that the judge sentence within the Guidelines range, they have not taken any position on the actual sentence, and I suspect they would have no objection to straight probation for Jones.
Could Bonds get the same deal? The indictment in his case involves perjury and obstruction, and if convicted the base offense level under Sec. 2J1.3 of the Guidelines would be 14 rather than the 6 that Jones began with under Sec. 2B1.1. Jones also received the benefit of the two-level downward adjustment for acceptance of responsibility, which kept her in the lowest sentencing range. If Bonds is convicted, he faces a minimum Guidelines range of 15-21 months. A plea bargain could be fashioned to have him plead guilty to making a false statement under Sec. 1001 rather than perjury because his grand jury testimony would come within that statutory provision. As such, he could also be in the same position as Jones, assuming prosecutors were willing to make such a deal and, more importantly, Bonds agreed to it. There might even be the possibility of a nolo plea to a single Sec. 1001 charge, or perhaps even a criminal contempt that could involve a deferred prosecution agreement, similar to the resolution of perjury charges against NBA star Chris Webber, who only paid a fine. Unlikely, to be sure, but possible.
Bonds, however, is fighting to do more than just avoid a conviction, but also to save his legacy as a baseball player. When that consideration gets thrown into the mix, the potential ppunishment diminishes in importance. Nevertheless, the Jones sentencing provides an outline as to what Bonds' lawyers might be able to negotiate, especially because the U.S. Attorney's Office for the Northern District of California signed off on the Jones plea agreement and sentencing. (ph)
Thursday, December 20, 2007
There is nothing quite like a high-profile scandal to attract Congressmen like moths to a flame, and the Mitchell Report on steroid and HGH use in baseball is one of the brightest flames around these days. Two Congressional Committees have scheduled hearings in January on the issue, inviting former Senator George Mitchell and MLB Commissioner Bud Selig to testify. Back in March 2005, in the first round of publicity-mongering on steroids in baseball, the House Oversight and Government Affairs Committee invited a number of major leaguers to testify about steroid use. That hearing produced Mark McGwire's famous non-assertion of the Fifth Amendment when he proclaimed he would only talk about the future -- who cares about what a retired baseball player does after his playing days -- and Rafael Palmeiro aggressively asserting that he never used steroids -- only to test positive a couple months later, thus ending his career.
The prospect of such enticing nuggets showing up on YouTube may well result in one or more invitations to superstar pitcher Roger Clemens to testify about his reported steroid use. Clemens is the highest profile player, perhaps after Barry Bonds, named in the Mitchell Report, and he issued the following statement denying the assertions in the Report: "I want to state clearly and without qualification: I did not take steroids, human growth hormone or any other banned substances at any time in my baseball career or, in fact, my entire life. Those substances represent a dangerous and destructive shortcut that no athlete should ever take." A USA Today story (here) quotes Representative Tom Davis as stating that no players will be subpoenaed, but they are free to appear voluntarily and testify under oath.
The source of the information about Clemens is a former trainer, Brian McNamee, who is reported to have spoken to Mitchell and his investigators pursuant to a proffer agreement with federal prosecutors that limits any subsequent use of his statements against him while requiring him to be truthful. This type of limited immunity, sometimes called a "Queen for a Day" agreement, usually is a prelude to a plea bargain with the government that will include a recommendation of leniency from prosecutors based on the defendant's cooperation. There is no report at this point that McNamee has agreed to plead guilty to any charges, and there's a chance prosecutors could decide not to charge him or even grant full immunity. Either way, the limited protection does not mean he is a credible witness automatically.
Given Clemens' denial and McNamee's statements to Mitchell, could there be much better theater than having them both appear on Capitol Hill, a surefire lead story on the evening news? While statements to the media are not subject to the perjury or false statement laws, much to the consternation of many journalists, testimony before Congress is under oath. If you were Clemens' attorney, would you have your client testify, especially if there were others out there aside from McNamee who could provide information against him? On the other hand, given the clarity of his denial of steroid and HGH use, can counsel advise Clemens not to testify if given the opportunity? While Clemens declined to speak with Mitchell, now that his name it out in public, there will be enormous pressure on him to go to Capitol Hill. In his statement he said "I plan to publicly answer all of those questions at the appropriate time in the appropriate way." Is a Congressional hearing the "appropriate" forum, or was he thinking about perhaps going on Larry King?
Of course, Congress would learn nothing of any importance from having Clemens testify, just like no real legislative purpose was served in 2005 when McGwire, Palmeiro, Sammy Sosa, and others were dragged in front of the Committee -- but not Barry Bonds, as it turns out. The invitation is really asking Clemens to step into a perjury traps because Congressional testimony is under oath, and hence subject to a perjury prosecution. The trap is easily avoided, if Clemens is not subpoenaed to testify, because he can just decline the invitation while castigating the media. Indeed, he may already have laid the groundwork for such a position when his statement included the following: "I am disappointed that my 25 years in public life have apparently not earned me the benefit of the doubt." Perhaps he will simply ask for the benefit of the doubt, but at what cost to his credibility if there's an open invitation to reiterate under oath what he has already said to the media. (ph)
Friday, December 7, 2007
Above the Law has eyewitness reports (here) on the initial appearance and arraignment of Barry Bonds. In addition to the usual procedures, such as Bonds being released without having to post bond or surrender his passport, it appears that the conflict of interest issue with one of his new attorneys, Christine Arguedas, is an issue, at least for the moment. From various reports, it sounds like prosecutors raised the question about one of Bonds' lawyers representing other witnesses in the case, which is probably Arguedas' representation of witnesses in the Balco grand jury investigation in which Bonds allegedly committed perjury. Of course, a defendant can waive the conflict, but the court is not required to accept it. This may be the first test regarding the relationship between the two sides, and if the government takes a hard line and files a motion to disqualify then things are likely to get pretty frosty.
The defense also said it will seek dismissal of the indictment, which will probably require briefing and a hearing on the motion. The next court date is February 7, at which time the judge may set a trial date. With a flurry of motions like to come soon, it is unlikely the case will be completed before the end of the 2008 season, which raises the question whether any major league team will take a chance and sign Bonds to a contract. (ph)
UPDATE: Here's the text of the court's order recounting the hearing:
The defendant’s appearance maybe waive at the next appearance. The appropriate waivers shall be filed in advance of the next hearing. The government indicated that there may be a conflict issue with certain defense counsel. The government shall e.file a letter indicating the situation as they see it and the Court will determine if a hearing is necessary. If the Court determines that a hearing is necessary, the defendant must be present. Defendant indicated that they may file a motion to dismiss the indictment.
Home run king Barry Bonds is supposed to appear in federal court for his initial appearance -- and most likely an arraignment -- on perjury and obstruction of justice charges contained in a federal indictment issued in San Francisco. A Wall Street Journal article (here), by Bay Area legal maven Justin Scheck, points out the problems Bonds has had in hiring a new attorney with significant federal court experience to conduct the defense at trial. The article notes that Bonds met with John Keker, of Keker & Van Nest, a nationally-known white collar defense lawyer who has defended, among others, former investment banker Frank Quattrone, who was also charged with obstruction of justice arising from a forwarded e-mail. There may have been an issue in hiring Keker because he represented the baseball players union in its fight to keep the government from getting the results of drug tests players took (see a New York Daily News story here). In discussing the approach to Keker, and various in-fighting among Bonds' current legal team, the WSJ article raises in my mind the question whether a lawyer would really even want Bonds as a client.
There are obvious benefits to being the attorney for one of the most famous players in professional sports history, in a trial that will gain national -- and probably even international -- attention. Bonds' lead counsel will be on television daily whenever there is any court proceeding, and the chance to have your picture appear over the shoulder of an ESPN SportsCenter anchor on a regular basis is publicity you just can't buy. The lawyer will join the pantheon of well-known defense counsel in this country, one of the "usual suspects" who will begin to appear regularly in a variety of cases, or be asked to comment on them. Pretty tempting, isn't it?
But from this ivory tower, I have to say that there are certainly a few major red flags that a lawyer has to think about seriously before undertaking the representation. The article notes that Bonds asked Keker for a discount on his $900 hourly rate, and wanted another law firm to review the billings. That certainly goes against the grain in white collar cases, in which cost is often not an obstacle. Bonds' past baseball income plus future earnings potential, regardless of the outcome of the case, probably means he can afford Keker's rate. There's nothing wrong with asking for a discount, and it makes good business sense to double check bills. Not the best way to begin a relationship, but it shouldn't be a showstopper, either.
If that was all, then the fact that Bonds wants a discount and will flyspeck bills would hardly be of interest beyond the stereotype of the allegedly cheapskate athlete. But the article also says that "Keker was concerned he wouldn't have control over Mr. Bonds's public relations and legal strategies and bridled at the prospect of collaborating with the player's current legal team." [Italics added] That starts to spell trouble for the lawyer. The fact that Bonds' current legal team is a bit on the dysfunctional side is problematic, but if the strings in the case will be pulled by someone else, then there is a significant danger for the lawyer. A defense lawyer being pulled in different directions, or forced to clear legal strategies through the "home office," may not be effective. Trust is a two-way street, and if the lawyer is not going to be trusted, then why take on the case?
It is always difficult to control a high-profile client who is used to being in charge of everything -- look no further than Lord Conrad Black, when the judge in his case threatened to take action against him for out-of-court comments during the trial if his lawyers didn't muzzle him. I'm not saying the lawyer has to control everything, but a trial is a lot like any theatrical production in which everyone has a role to play. The client who believes he or she can "talk my way out of this" or who showers the government with disdain, no doubt believing it is richly deserved, is looking for trouble. Heaven forbid the client demand the opportunity to testify to "explain" everything for the jury so they will understand how misunderstood the defendant really is -- that drooling person would be the prosecutor waiting for the cross-examination. Especially in a perjury and obstruction prosecution, portraying the defendant as an honest person whose statements were just misunderstood is paramount, but the defendant may be the worst person to say that. The hardest decision in a case, especially a white collar prosecution, is whether the defendant will testify, and there can only be two people involved: the lead counsel and the client. If there is a fight over control of the case from the beginning, then it means other agendas may be playing out, with the trial lawyer getting the blame if things go wrong.
So, would you really want to be Barry Bonds' lawyer? Tough call, but it would be pretty cool to appear on SportsCenter right after the Patriots highlights. (ph)
UPDATE: The San Jose Mercury News reports (here) that Bonds has added two Bay Area attorneys: Allen Ruby and Christine Arguedas. Ruby has represented the NFL in one of Oakland Raiders owner Al Davis' many lawsuits against the league, and Arguedas is well-known in white collar crime circles for her work recently on behalf of various corporate executives caught up in options backdating, including the former GC at Apple, and the former general counsel of Hewlett-Packard in that company's pretexting imbroglio.
Arguedas has represented others in connection with the Balco (Bay Area Laboratory Cooperative) steroids investigation, including witnesses who appeared before the grand jury. That gives her some familiarity with the case. While it can be dicey to represent different people involved in a grand jury investigation, I doubt there is a conflict of interest problem for her because there does not seem to be any overlap between the witnesses who testified before the Balco grand jury and those who are likely to be called in the Bonds trial. It remains to be seen, however, whether prosecutors will look for a potential conflict of interest as the basis to move to knock Arguedas off the case. Another interesting question will be whether Ruby or Arguedas takes the lead in the case, or whether they are co-leaders of the defense -- which one gets to be on SportsCenter. No word yet on whether either discounted his/her fees for the case. (ph)
Friday, November 23, 2007
The prosecution of homerun king Barry Bonds for four counts of perjury requires prosecutors to establish that he lied and not just made misleading statements. The testimony recounted in the indictment shows Bonds clearly denying any knowing use of steroids, and placing his inadvertent use of "the cream" in and around the 2003 season. A "literal truth" defense (see earlier post here) will be difficult to mount when the testimony is explicit and a clear denial. To prove Bonds lied, prosecutors will need to produce evidence that he did in fact use steroids at various times, and that it was done at least with his knowledge of a strong possibility that what he ingested or administered into his body was steroids. While the indictment identifies the alleged lies, it says almost nothing about the government's proof to show the statements were in fact false, and Bonds' knowledge of their falsity.
One avenue of evidence involves documents seized from Balco (Bay Area Laboratory Cooperative), which was the source of the steroids Bonds allegedly used. There is a reference in the indictment to an exchange in the grand jury in which the prosecutor shows Bonds a Balco document with a date for possible steroid use and the notation "BB" next to it, but Bonds disclaims any use at that time. The purported creator of the document is former Bonds trainer Greg Anderson, who refused to testify before the grand jury and his attorney recently vowed in an interview (see MSNBC story here) that he will not testify at trial. Anderson would be key to identifying whether BB is Bonds, and he can authenticate the documents for admission in to evidence. While there is a chance prosecutors will call Anderson at trial to at least get the documents into evidence, I doubt they will go down that road. There may be other means to have the document admitted. Moreover, Anderson has shown no willingness to provide any information that could harm Bonds, and if he were to testify prosecutors would have no idea what he would say. He could even "fall on his sword" and testify as a means to exculpate Bonds. While that would subject Anderson to the risk of a perjury prosecution, it would be little comfort to prosecutors if Bonds were found not guilty based on reasonable doubt raised by Anderson's testimony. If he refuses to testify at trial, Anderson could be charged with criminal contempt, but that doesn't help prosecutors much in the Bonds case and gives at least the appearance of vindictiveness against Anderson, who has made his position clear.
Other sources of evidence speculated about in the press (see AP story here) include a former long-time friend and business partner of Bonds and a former mistress, but each carries significant baggage and would not be particularly strong witnesses, or at least not the type of witness on which one centers a case. A likely source of information may be documents and testimony from the staff of the San Francisco Giants, Bonds' former employer for fifteen years. In July 2006, prosecutors allowed the term of an earlier grand jury investigating Bonds to expire because the government had just received Bonds' team medical records pursuant to a subpoena. Those documents, and perhaps testimony from medical personnel with the Giants, could be used to establish his likely usage of steroids, thus bolstering the testimony of any witnesses who might recount statements made by Bonds about his steroids use. In the credibility battle like to unfold at trial, the documents can be the government's best evidence because they don't hold a grudge or have deals with prosecutors.
As a final note, one criticism of the indictment from the media and even Bonds' lawyers was the delay in seeking the charges, that the government had all its evidence back in 2005. The problem with this criticism is that it's not yet clear what evidence the prosecutors plan to use, and whether they obtained any in the past year or so. For example, the medical records were not delivered until July 21, 2006, and that was over the objection of Bonds, who tried to quash the subpoena to the Giants (see San Francisco Chronicle story here). Anderson spent over a year in jail for civil contempt because he refused to testify before the grand jury, and prosecutors cannot be faulted for trying to obtain information from a potentially key witness that results in delaying the investigation. The Bonds case played out over a long period of time, but whether that is a ground for criticism is certainly not clear. (ph)
UPDATE: A New York Times story (here) indicates that Bonds is shopping for new counsel with more experience in federal prosecutions, something lacking on his current legal team. There are plenty of outstanding white collar defense counsel in San Francisco, although a local attorney is not necessary for a case like this, so the search may well involve lawyers throughout the company. Whoever wins the sweepstakes will see his or her name in the newspaper and on ESPN quite a bit. (ph)
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)