by James Scanlan, Esq.
Jury selection in the Roger Clemens obstruction of congress/false statements/perjury trial was an involved process lasting four days. Nevertheless, on July 14, 2011, early into the second day of trial, District Judge Reggie B. Walton ordered a mistrial when the prosecution presented evidence that Walton considered contrary to a ruling he had made a week earlier. Walton then ordered briefing on whether Clemens may be retried and scheduled a hearing on the matter for September 2, 2011. Walton’s perceptions of whether the prosecutors acted in bad faith may affect his decision. So, too, should his perceptions about the prosecutors’ candor in explaining the motivations for their conduct.
A. The Events and the Ruling
The events in courts that led to the mistrial are not very complicated. Among the 40-plus witnesses the government intended to call in its case-in-chief were (a) Andy Pettitte, to testify, consistent with an affidavit that he provided Congress in 2008, that in 1999 or 2000 Roger Clemens had told him that Clemens had used human growth hormone and that, soon after the conversation, Pettitte discussed it with his wife, Laura Pettitte, and (b) Laura Pettitte, to testify, consistent with the affidavit she provided Congress in 2008, that in 1999 or 2000 Andy Pettitte told her that he had had a conversation with Clemens in which Clemens said that he had used human growth hormone. Among other things, that in 1999 or 2000 Clemens had told Andy Pettitte that Clemens had used human growth hormone was pertinent to the claim that Clemens committed perjury by falsely stating under oath that he had never used human growth hormone.
The defense moved to preclude the testimony of Laura Pettitte and certain other witness on grounds that the expected testimony was inadmissible hearsay and proposed an order stating that “counsel for the Government shall not mention, refer to, or bring before the jury, directly or indirectly, on voir dire examination, reading of the pleadings, statement of the case, interrogation of the witnesses, argument, objections before the jury, or in any other manner hearsay testimony by Laura Pettitte unless and until the matter has first been called to the Court’s attention out of the presence and hearing of the jury and a favorable ruling received on the admissibility and relevance of the matter.” The final paragraph of the motion similarly sought a ruling that, before presenting the hearsay testimony the defense was challenging, prosecutors must bring the material to the attention of court “out of the presence and the hearing of the jury.” On July 7, 2011, Judge Walton issued a brief order addressing several related matters and stating that the motion to preclude testimony of Laura Pettitte and others was granted in part and denied in part, clarifying (at 2 n.2) that such testimony could be presented only in rebuttal and only if defense counsel’s cross-examination provided a sufficient predicate for it.
Early in the second day of its case-in-chief, the prosecution played a video – accompanied by written transcript on a visual presenter – from a February 13, 2008 Congressional hearing in which, among other things, Congressman Elijah Cummings confronted Clemens with the fact that Laura Pettitte had submitted a sworn affidavit stating that Andy Pettitte had told her of a conversation in which Clemens told Pettitte that Clemens had used human growth hormone. The video and transcript were in the form provided to defense two months before trial and admitted into evidence, without objection from the defense, shortly before the video was played. The government had made no redactions in light of the court’s ruling barring Laura Pettitte’s testimony.
At the time the court interrupted the proceedings, the video tape and transcript showed Cummings in the process of asking the question set out below. According to a video of the Congressional hearings that is available here and a preliminary transcript of that hearing that is available here (at 39-41), the question followed upon questions in which Cummings recounted Andy Pettitte’s statements that Clemens had told Pettitte that Clemens had used human growth hormone and immediately after Cummings elicited from Clemens that Pettitte would have no reason to fabricate the story. In the quotation below the bracketed quotation marks are mine and the highlighting is mine.
“This was so important we went back to Mr. Pettitte a third time, a third time. We asked him to submit an affidavit to the committee. This gave him a chance to express his recollection clearly, without the pressures of a deposition.
“I want to read to you what he wrote. It says, [‘]In 1999 or 2000, I had a conversation with Roger Clemens in which Roger told me that he had taken human growth hormones. This conversation occurred at his gym in Memorial, Texas. He did not tell me where he got the HGH or from whom, but he did tell me that it helped the body recover.[‘]
“It is not just Mr. Pettitte who recollects this conversation. During his deposition, Mr. Pettitte told us that he tells his wife everything. So we asked his wife to give us an affidavit about what she knew. And understand, this is under oath. Let me read to you what his wife said in her affidavit.
“[‘]I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me he had had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones.[‘]
“Mr. Clemens, once again I remind you. You are under oath. You have said your conversation with Mr. Pettitte never happened. If that was true, why would Laura Pettitte remember Andy telling her about the conversation?”
According to the transcript of the July 14, 2011 court hearing (at 43), the highlighted material was on the video presenter at the time Judge Walton called a bench conference, and the evidence presented never got beyond that. Observations Walton made before clarification of what had been on the presenter (Tr. 36, 41) suggest that the video had not yet gotten to the point of the displayed transcript material. But the clarification as to what was on the video presenter also revealed that the highlighted material had been visible to the jury throughout the several-minute initial bench conference. Tr. 42-43.
Judge Walton indicated that he regarding the government’s presenting of the quoted material as a clear violation of his order regarding the Laura Pettitte testimony and that it had been the government’s obligation to redact the material from any evidence presented in court regardless of any objection by the defense. Tr. 33, 36-37, 44, 49-50. Walton also made clear that he believed that the prosecutors should have known this, observing “government counsel doesn’t do just what government counsel can get away with doing,” and noting that “a first-year law student knows that you can’t bolster the credibility of one witness with clearly admissible statements.” Tr. 46.
Walton also indicated that he was influenced by the potential prejudicial effect of Cummings’ opining on the credibility of Andy Pettitte as well as Cummings’ eliciting from Clemens affirmations of Pettitte’s honesty. Tr. 36, 46, 48. Expressing a view that Clemens was going to have great difficulty undermining Andy Pettitte’s credibility irrespective of the material improperly presented to the jury (Tr. 48), Walton concluded that the only way to deal with the matter was by declaring a mistrial. Tr. 48-50.
B. The Prosecutors’ Thinking
A Washington Post article on the mistrial discusses accounts of how respected for their integrity are the two Department of Justice attorneys responsible for the action leading to the mistrial and hence why the attorneys must have simply made a mistake. I have no reason to question that the prosecutors, Assistant United States Attorneys Steven J. Durham and Daniel B. Butler, are highly regarded. I doubt, however, that they are any more respected for their integrity within the Department than United States Attorney Robert E. O'Neill and Criminal Division Deputy Assistant Attorney General Bruce C. Swartz. Yet most careful readers of the items I have posted here on O’Neill and Swartz (and materials made available in support of those items) would say that neither should be representing the United States in any capacity, and some would say that they should have each been prosecuted for their conduct in United States v. Dean (with O’Neill prosecuted as well for the false statement he made in seeking the United States Attorney position). See, for example, Truth in Justice items of July 18, 2011 (O’Neill) and March 19, 2011 (Swartz).
Thus, as reflected by the esteem in which O’Neill and Swartz are held at the Department of Justice, the reality is that, whatever putatively informed observers may say about a prosecutor’s honesty, even when said in the utmost good faith, few really know much about the propensity of an individual prosecutor to ignore the rules when there is an advantage in doing so, particularly in a high profile case that the prosecutor has a great interest in winning. So let us at least consider the possibility or likelihood that the two attorneys in the Clemens case, with or without consultation with their superiors and others within the United States Attorney’s office, recognized their obligation to remove the inadmissible evidence from the materials they were to present to the jury – or, let us say, recognized a substantial probability that the court would regard such obligation to be implicit in its order – but decided that they would simply proceed with the unredacted materials, leaving to the defense the burden of objecting.
If so, someone involved in discussions may have observed, though mistakenly, something to the effect that “worst case is that the judge will instruct the jury to disregard the inadmissible evidence on the tapes” ¬– as prosecutor Durham in fact tell would tell the court that he (Durham) thought would be an adequate remedy (Tr. 47) – and that possibly the defense would not even object once the material was presented in order to avoid highlighting it to the jury. And one or more discussants may have thought or said that the government would in any event derive a benefit from presenting the excerpts, given the inability of most jurors to fully comply with an instruction to ignore seemingly important material, especially when the material is highlighted by defense counsel’s seeking to have it stricken.
Possibly the decision was also motivated by the fact that the excerpt regarding the Laura Pettitte affidavit was integral to the presentation of Congressman Cummings’ evident disbelief (and quite forceful evident disbelief, as the video reveals) of Clemens and opining on the credibility of Andy Pettitte. Cummings – a Democrat from Baltimore as the prosecution witness testifying about the excerpt had noted (Tr. 32) ¬¬ ¬– is an African American, age 57 at the time of the congressional hearings, with a commanding persona, at least in the context of his questioning of Clemens. Thus, prosecutors would have had reason to expect that Cummings’ statements would have a substantial effect on any jury, but especially a majority black DC jury, regardless of whether the statements were ultimately stricken.
Indeed, the difficulty of remedying the effect of the excerpt on the jury would be evident enough to any who had viewed the video that, even were there only a small chance that the Judge Walton would regard the excerpt to be covered by the ruling, responsible prosecutors would have sought clarification from Walton prior to presenting the material. A fair inference is that the prosecutors did not ask Walton because they knew what he was likely or certain to say.
Defense counsel suggested that part of the reason for the defense’s failure to object when the government sought to admit the hearing video and transcript earlier in the morning was that, despite repeated requests for the government’s marked exhibits, those exhibits were not provided until the afternoon of July 11, the “11th hour” in counsel’s estimation. Apparently, prosecutor Durham had advised defense counsel that resource restrictions prevented the government from producing the marked exhibits any earlier. Tr. 44-45. So one must also consider the possibility that it was not limited resources that prevented earlier production of the exhibits, but that the late production was specifically intended to reduce the likelihood that the defense would be in a position to object to the use of the unredacted excerpts before they were admitted.
One must consider, too, the possibility that prosecutors carefully evaluated the likelihood of a mistrial, but concluded that, precisely because it had taken so long to empanel the jury, Judge Walton would be reluctant to adopt such a course.
In the course of any such discussions on the desirability of getting Cummings’ discussion of the Laura Pettitte affidavit before the jury, someone might even have said something to the effect that “we can always say …,” as lawyers sometimes do. Not always is there someone present to authoritatively counsel that one cannot say something to the court concerning the reason for an attorney’s actions unless it is true.
C. The Prosecutors Statements So Far
Apart from stating that “[t]here was no intention to run afoul of any court ruling” (Tr. 37), so far prosecutor statements that might be reflective of their motives remain interpretable. Prosecutor Durham several times noted that the video clip had been provided to the defense two months earlier and that it had been admitted without objection from the defense. Tr. 33, 37, 43. At one point he observed in defense of failing to redact the key material: “This is part of the Congressman's question to Mr. Clemens. If this has been raised before, then we could ….” But he was cut off by the Judge Walton’s observing that, while the matter may not have been raised with regard to the particular clip, the matter of whether Laura Pettitte’s testimony could be admitted had been raised. Tr. 33-4. Durham later also stated (Tr. 38): “This was within the context of a question that was being posed [by] Representative Cummings, which obviously is not evidence at all.”
To Judge Walton’s specific question of “[w]hy wasn't this altered in order to ensure that this information that I had ruled could not come in would not be played to this jury and shown to them,” Durham simply stated: “This exhibit is in the context of a question that is asked to Mr. Clemens specifically.” Tr. 44.
Without exploring the nuances of each statement the prosecutors have so far made, I simply note that there seems still seems an unanswered question of whether the prosecutors recognized that there was even a significant possibility that the court would have expected the government to redact material discussing the Laura Pettitte affidavit but proceeded as they did because they thought they could plausibly state that they failed to appreciate that aspect of the ruling. Variations on that question include (a) assuming the prosecutors believed there was any possibility that the court would regard the material at issue as covered by its ruling, why they did not raise the matter with the court prior to presenting the material; (b) whether they believed that the government would derive a benefit from having presented the material even if it were stricken. One also would want to know whether in fact the marked exhibits were not ready until the afternoon of July 11, or the production had been intentionally delayed either (a) specifically to impede the defense from challenging the excerpt containing the Laura Pettitte material before it was admitted into evidence or (b) generally to impede the defense.
D. The Impending August 19, 2011 Response of the Government
In a September 3, 2010 Truth in Justice item styled “Doubtful Progress on Professional Responsibility at DOJ,” I discussed that Bruce C. Swartz’s actions in United States v. Dean could serve as useful case study of impermissible evasions and deceptions in responding to allegations of prosecutorial abuse. There, and in a further development of the matter in Addendum 7 to the Bruce C. Swartz profile, I discussed the tactic of making arguments about the facts and legal obligations that, if plausible, might suggest that prosecutors had not acted in bad faith, while failing to straightforwardly tell the court what the prosecutors were in fact thinking. And I suggested that a step toward solving problems of prosecutorial abuse generally would be a requirement that prosecutors respond to misconduct allegations in affidavits and that that Department of Justice insist that those affidavits be true. Indeed, the Department cannot allow the prosecutors to present affidavits unless the Department believes they are true (nor, of course, can it otherwise allow prosecutors to attempt to lead courts to believe things that are not true).
At this point, we can simply say that there is some reason to believe that there was an element of bad faith in the prosecutors’ presenting the congressional hearing excerpt with the Laura Pettitte references. And almost always when prosecutors act in bad faith there exists an intention that, should it prove necessary, they will affirmatively deceive the court concerning the motives underlying challenged conduct – preferably by evasiveness rather than by making outright false statements to the court, especially in sworn affidavits. Yet deceiving the court on a matter, whether by evasiveness or otherwise, typically will constitute at least as grave an abuse as the underlying conduct.
Defendant’s memorandum is due on July 29 and the government’s opposition on August 19, with both available on pacer.gov shortly after filing. The latter item will warrant a careful reading with respect to what it states or implies about the prosecutors’ motives and what it otherwise indicates about their candor in their dealings with the court.