by James Scanlan, Esq.
According to the press coverage of the jury selection in the Roger Clemens perjury case, it was quite an involved matter. In the event that the case is tried again following the mistrial due to the government’s putting inadmissible evidence before the jury, the next jury selection will be complicated further by press coverage concerning the existence of inadmissible evidence that tends to support the government’s version of events.
A case in the Middle District of Florida that I wrote about here in a June 21, 2011 item styled “United States Attorney Robert E. O'Neill as Crusader Against Corrupt Public Officials” may prove to raise similarly difficult jury selection issues – though ones related to the attorney prosecuting the case rather than anything concerning a defendant or public knowledge of the facts of the case. In the June 21, 2011 item, I noted that United States Attorney Robert E. O’Neill’s appearance at a hearing in a case brought against a former Hillsborough County Commissioner, United States v. Kevin L. White, suggested that O’Neill might intend to try the case himself. The case includes a count alleging a violation 18 U.S.C. § 1001, a statute that I have many times here observed O’Neill himself almost certainly violated during the course of his seeking the United States Attorney position by making a false statement concerning the origination of a District of Columbia Bar Counsel investigation of his conduct in United States v. Dean. Apart from the incongruousness of O’Neill’s seeking to prove a violation of a statute that he recently may have violated, I noted that if information about O’Neill’s violation of 18 U.S.C. § 1001 becomes widely known in the Tampa/St. Petersburg area, the court may have problems impaneling a jury and ensuring that such information does not come to the attention of the jury during the trial.
A July 1, 2011 St. Petersburg Times article has since indicated that O’Neill does intend to personally try the case. Given the amount of publicly available material detailing not only the false statement O’Neill made on his Florida Federal Judicial Nominating Commission application for the United States Attorney position, but also the pervasive and often shocking abuses for which he responsible in United States v. Dean, probably I understated potential problems facing the court if Robert E. O’Neill were to attempt to try a criminal case himself, regardless of whether the case contains an 18 U.S.C. § 1001 count. In a September 26, 2010 item styled “The Honorable Robert E. O’Neill Regrets That He is Unable to Answer Questions from the Audience,” in discussing that O’Neill’s appointment as United States Attorney would likely enhance my ability to publicize the nature of his conduct in the Dean case, I noted that O’Neill’s nomination had greatly increased the Google ranking of my treatments of O’Neill’s conduct.
There existed, of course, the possibility that once O’Neill started issuing press releases as the United States Attorney, the rankings of those treatments would fall substantially. But today a Google search for “Robert E. O’Neill” yields that September 26, 2010 item as the second result and my Robert E. O’ Neill profile page as the sixth. A Bing search yields the profile page as the first result, my June 29, 2011 Truth in Justice item styled “Robert E. O’Neill’s Tricks of the Trade – One” as the third, and the June 21, 2011 item discussed in the second paragraph as the seventh, with roughly similar results on Yahoo. In short, anyone who attempts to learn about Robert E. O'Neill the way most people would these days is confronted with my portrayals of Robert E. O'Neill as someone who certainly ought not to hold public office and probably should have spent (or should spend) some time in prison. The September 26, 2010 item, which highlights O’Neill’s prosecutorial tactic of calling people liars even when he knows they have not lied and his “a liar is a liar” comment from United States v. Spellissy, in the context of the undisputable evidence that O’Neill himself lied on his United States Attorney application, certainly suggests a hypocrisy that even the cynical would deem remarkable.
From the government’s perspective, a reader of any of my treatments of O’Neill’s conduct would be an unsuitable juror in a case tried by O’Neill. Apart from the juror’s broad reactions toward O’Neill’s effort to prove a case that may well involve conduct far less nefarious than that O’Neill engaged in under the color or law, the juror would have to regard as ludicrous any effort by O’Neill to impugn the veracity of a witness or to impress upon the jury the importance of 18 U.S.C. § 1001. And, even if the court is able to impanel a juror that is untainted by my accounts of O’Neill’s character and conduct, absent specific instruction that jurors not only should avoid learning anything about the case outside of the courtroom but should avoid learning anything about the counsel outside of the courtroom, there would exist a possibility that, out of simple curiosity, some juror might look up on the internet the United States Attorney who is personally trying the case.
By letter dated July 14, 2011, I raised these issues with the Honorable James D. Whittemore, the trial judge in the White case, addressing as well the reasons that the court should carefully scrutinize O’Neill’s behavior and representations during the course of the trial. Judge Whittemore, as it happens, is the same judge who recently issued the order in United States v. Del Fuoco containing language suggesting that a false statement on O’Neill’s Florida Federal Judicial Nominating Commission application would itself violate 18 U.S.C. § 1001. See my February 19, 2011 Truth in Justice item styled “Robert E. O’Neill and 18 U.S.C. § 1001.” Judge Whittemore was also the presiding when O’Neill made his “a liar is a liar” remark in United States v. Spellissy. I copied Jay Macklin, General Counsel of the Executive Office for United States Attorneys. Macklin is the Department of Justice official mentioned in the September 26, 2010 Truth in Justice item and elsewhere who communicated the Department’s refusal to investigate whether O’Neill lied on his United States Attorney application while citing the transparently inapplicable policy of refusing to investigate prosecutorial misconduct issues that were or could have been raised in litigation.
Unless Judge Whittemore and the Department of Justice completely ignore the matter, it would seem difficult to believe that Robert E. O'Neill will end up trying the White case. But I had found it difficult to believe that someone would become a United States Attorney after both the Department of Justice and the Senate Judiciary Committee were made aware that he lied on his application for the position. So we’ll see.
In the case of the Department of Justice, it warrants note, acting responsibly on the matter puts it on a slippery slope. For once the Department takes any action in acknowledgement that O’Neill lied on the application, it will become hard for it to justify having allowed him to become United States Attorney in the first place, allowing him to remain in the position, or, for that matter, failing now to prosecute him for violating 18 U.S.C. § 1001.
The day after I posted my letter to Judge Whittemore, an article in the St. Petersburg Times alerted me to the fact that O’Neill has already tried one case as United States Attorney. In a case involving fraud allegations concerning the purchase of a book for a Head Start program, a jury convicted one defendant while acquitting two. I doubt that a juror’s knowledge of my treatments of O’Neill’s conduct, or of the facts underlying those treatments, had any bearing on the outcome of the case. There is a good chance that no one involved in the case, save for O’Neill himself, was aware of either matter. But these things are not going to remain unknown forever, either in the Tampa/St. Petersburg area or elsewhere. And as they become more widely known, whether they in fact ever affect the outcome of a trial or complicate a jury selection, the spectacle of an individual like Robert E. O'Neill trying cases on behalf of the United States will do little to enhance the public’s faith in the criminal justice system.
Trial in the White case was originally set for August 1, 2011. On July 15, 2011, the defense moved to postpone the trial through the end of the year. The motion is pending.