Wednesday, August 31, 2011

Will the Truth (About the Prosecutors) Come out in the Clemens Case? – Part III

by James Scanlan, Esq.

This article follows on correspondingly titled items of July 26, 2011 (Clemens I) and August 4, 2011 (Clemens II) concerning the mistrial in the Roger Clemens obstruction of congress/false statements/perjury case. Those items principally concerned whether the government would fulfill its obligation to be candid with the court as to the intentions of the prosecutors when they took the actions that led to the mistrial. The case is also discussed in an August 15, 2011 item styled “Legal Fictions and Farces” with regard to the doubtful efficacy of instructions to disregard material that jurors would be inclined to consider important.

A. Background
The key events are not complicated. At a hearing on July 5, 2011, D.C. District Court Judge Reggie B. Walton, addressing a defense motion in limine, ruled that the government could not call Laura Pettitte in its case in chief to testify, consistent with an affidavit she provided Congress in 2008, that in 1999 or 2000 Andy Pettitte told her that he had a conversation with Roger Clemens in which Clemens said that he had used human growth hormone. Judge Walton left open that the government might call Laura Pettitte in rebuttal if the defense’s cross-examination of Andy Pettitte provided a sufficient predicate for it.

Early in the second day of trial, the government, without objection, introduced into evidence a video and accompanying five pages of transcript from a February 13, 2008 hearing in which Congressman Elijah Cummings, during the course of questioning Clemens, read to him the Laura Pettitte affidavit recounting the 1999 or 2000 conversation in which Andy Pettitte told her that Clemens had told Pettitte that Clemens had used human growth hormone. The government had failed to redact this material from the video/transcript in light of the court’s ruling barring the Laura Pettitte testimony. When the government played the video (with accompanying transcript), the court interrupted the proceedings. Finding that the failure to redact the materials discussing the Laura Pettitte affidavit was a clear violation of his earlier ruling and that the improperly presented material could affect the verdict, Judge Walton ordered a mistrial. Walton then ordered briefing on whether Clemens could be retried and scheduled a hearing on the matter for September 2, 2011.

Clemens I discussed the likelihood that, though knowing (or at least believing it possible) that Judge Walton would have expected the government to redact the discussion of the Laura Pettitte affidavit from the video clip, the prosecutors intentionally failed to do so, leaving it to the defense to object. I suggested that in taking such course the prosecutors would have expected that a defense objection would simply cause Judge Walton to instruct the jury to disregard the material, but believed that they would still derive a benefit from having put the material in front of the jury and possibly that the impact of the material would be heighted because of the defense objection.

I also discussed that a decision to engage in some form of misconduct commonly involves a decision that the prosecutors, should it prove necessary, would in some manner deceive the court as to their intentions at the time they took the challenged action. I argued (as I had done here in a September 3, 2010 item styled “Doubtful Progress on Professional Responsibility at DOJ,” and Addendum 7 to the Bruce C. Swartz profile) that prosecutors should be required to provide sworn statements as to their thinking when they took challenged actions.

In a section of that item that attempted to divine the prosecutors’ defense for the failure to redact the Laura Pettitte material, I discussed what seemed the most pertinent of prosecutor Steven J. Durham’s statements to the court. But I concluded that those statements left unanswered the question of whether the prosecutors had 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.

Clemens II addressed the implications of the fact that the Clemens motion to preclude a retrial, filed July 29, 2011, had made a persuasive case that the prosecutors intentionally violated Judge Walton’s order by failing to redact the Laura Pettitte material from the video but a rather less persuasive case that the prosecutors had done so to cause the defense to seek a mistrial, which the defense conceded was a necessary criterion for barring a retrial. Thus, I discussed whether the prosecutors would acknowledge that they intentionally violated the order while maintaining that they did not intend to cause a mistrial or would engage in further misconduct by maintaining that they did not intentionally violate the court’s order at all. And I stressed that it was not only the prosecutor’s obligation to be truthful with the court, but the Department of Justice’s obligation to ensure that they are. I could have added that, while it might be permissible for the Department to give the prosecutors’ the benefit of the doubt in determining whether discipline is warranted, the Department cannot give the prosecutors the benefit of the doubt such as to allow them to deny having intentionally engaged in misconduct if the weight of the evidence considered by the Department indicates otherwise. Clemens II also discussed that the defense had left open the possibility that it would seek an evidentiary hearing on the prosecutor’s intentions depending on what evidence the government provided in support of its opposition.

I suggested that the defense opposition should be a revealing document regardless of whether it is forthcoming as to the prosecutors’ intentions and that the matter could prove increasingly interesting in the event the defense does seek an evidentiary hearing on the prosecutors’ intentions.

B. The Government’s Opposition to the Motion to Preclude a Retrial
The government’s opposition, timely filed on August 19, 2011, has proven to be an interesting document in a variety of respects. To begin with, in addition to the two trial attorneys directly responsible for violating the court’s order, the opposition is authored by a member of the Appellate Division of the United States Attorney’s Office. Thus, as might be expected in a case of such high profile, the decision as to the approach in the opposition would appear to involve higher levels within the office and, if the opposition is intended to mislead the court in any way, those higher levels are likely involved at least by failing to ensure that the prosecutors are entirely candid with the court.

As those familiar with the ways prosecutors typically respond to allegations of misconduct might have expected, the opposition provided no sworn declarations and it argued (in this section) against the court’s holding an evidentiary hearing. But it maintained (at 14) that the prosecutors’ statements in court during the hearing of July 14, 2011 are the virtual equivalents of sworn statements. Whether or not intended merely to cause the court to accord the statements greater deference, the point would apply as well to claims made in the opposition itself and the court should consider those claims in such light. But the claims are not so easy to believe.

The opposition specifically acknowledges that the government was obligated to redact the Laura Pettitte material regardless of whether there was any objection by the defense. That acknowledgement, which renders irrelevant (save in the respect that I address several paragraphs below) the discussion in Sections B though D of Clemens I regarding whether the prosecutors recognized that the court would expect them to redact the material, limits the scope of a possible defense for the failure to make appropriate redactions.

That defense turns out to be that the failure to redact the material was a “mistake” or “inadvertent,” variations on which terms are used over thirty times in the opposition (including quotations of authorities). In pressing this claim, the opposition repeatedly stresses prosecutor Durham’s several statements in the July 14, 2011 hearing (Tr. 37, 39, 44) that the government did not intend to do anything wrong, especially the statement that (Tr. 37) “[t]here was no intention to run afoul of any Court ruling,” which is used as the heading for the section addressing this issue. And, in what seems an effort to enhance the credibility of these statements, the opposition repeatedly refers to them as “contemporaneous declarations” or “contemporaneous comments.”

While the contemporaneousness of certain types of statements may be an appropriate basis for an exception to the hearsay rule, however, there seems little reason to regard blanket denials of any wrongful intent as more credible because they were made immediately after some conduct is called into question. Such denials are too automatic even from people who might on reflection acknowledge wrongdoing for the timing to enhance their credibility. And here, of course, assuming that the prosecutors made a considered decision to leave the video unredacted, they had ample time to decide what they would say if the failure to redact the material was challenged. Whether conclusory statements like the one just quoted – as well as the statements that “[t]here is no bad faith on the part of the government” (quoted in whole or in part in the opposition at 9, 14, 21 n.17, 24) or that the government was “not evading any responsibility”(quoted in whole or in part in the opposition at 9,14, 17) – should be accorded any weight at all, they certainly do not warrant the controlling weight sought in the opposition. And that holds regardless when the statements are made.

But the fact that certain statements were made and others not made at the hearing is nevertheless of considerable significance as one attempt to appraise the government’s candor in its opposition to the Clemens motion. For, it seems to me, the specific explanation the opposition offers for the failure to redact discussion of the Laura Pettitte affidavit not only is brand new and difficult to believe in its own right, but is contrary the prosecutor’s statements at the hearing.

In presenting what it purports to be a “fuller explanation of the precise circumstances surrounding the failure to redact” the subject material, the opposition (at 15-16) describes a time line in which the government’s exhibits involving congressional testimony had been prepared and authenticated by the witness through whom they would be introduced prior to the July 5, 2011 hearing where the court orally granted the defense motion in limine barring the testimony of Laura Pettitte and in which jury selection began the day after the hearing. The opposition then states (at 16):

“As this time line reveals, all of counsels' work on the government's exhibits had been completed by the time of the July 5 in limine ruling: the proposed exhibits had been designated; the exhibits had been authenticated by the government's witness; and an exhibit list had been filed with this Court. By the time of the July 5th in limine ruling, these exhibits were not at the forefront of either prosecutor's mind, rather, among other things, jury selection, opening statements, and jury instructions were. [Footnote at this point reads: “During this time period, the government was responding to questions about the instructions, drafting jury instructions, and identifying objections to specific defense instructions.”] Moreover, when this Court issued its July 5th in limine ruling, government counsel focused on the most obvious component of that ruling — the government could not call Laura Pettitte as a witness in its case in chief unless and until this Court approved it. Unfortunately, neither government counsel additionally focused on whether the substance of Laura Pettitte's testimony might be embedded in a question of one of defendant's congressional interlocutors. To be sure, this reference violated this Court's first in limine ruling and would have been removed had government counsel adequately focused on it.”

Thus, the opposition appears to maintain that the two prosecutors trying the case (and, impliedly, everyone assisting or supervising them in this high profile case) had forgotten that the Laura Pettitte testimony was discussed in this five-page hearing excerpt.

No one who has had a trial can question that it is easy to be overwhelmed by the myriad matters warranting attention immediately before the trial commences. But the Laura Pettitte affidavit had been specifically cited in, and attached to, the government’s opposition to the defense motion to bar Laura Pettitte’s testimony, and it had certainly been at the forefront of the prosecution team’s mind when, at the July 5 hearing, the government argued that the testimony was important to its case. Indeed, during the hearing prosecutor Durham twice noted (Tr. 26-28) that in the Congressional hearing Clemens repeatedly stated that that Andy Pettitte had misremembered their conversation concerning human growth hormone. One of those statements was specifically in response to Congressman Cummings’ confronting Clemens with the Laura Pettitte affidavit and another was only a few lines later. See pages 41-42 of the Preliminary Hearing Transcript (which is differently paginated from that presented in court). In fact, the prosecutors presumably first learned of the Laura Pettitte affidavit by reviewing Cummings’ questioning of Clemens.

Further, this particular hearing excerpt (pages 86-90) was the first part of the critical hearing to be presented to the jury. It had included material specifically quoted in the indictment (at 11) concerning Clemens’ recognition of the implications of being under oath and quoted again (at 13) for what were alleged to be instances of false or misleading statements intended to obstruct the Congressional investigation (including the statements that Andy Pettitte misremembered the 1999 or 2000 conversation). Apart from these five pages, only six pages of the hearing were otherwise referenced in the entire indictment. Similarly, only seven hearing transcript pages apart from 86-90 were listed on the government’s exhibit list. And as pointed out in Section B of Clemens I, the material in this excerpt, including Congressman Cummings’ discussion of the Laura Pettitte affidavit, is quite compelling, which is both why the prosecutors had strong reason to want to put it before the juror and why Judge Walton felt the trial could not continue after it had been.

So it is difficult to understand how the prosecutors could have presented the subject video clip without having very clear in their minds, if not every word in it, at least that Congressman Cummings was going to be making a very big deal out of the Laura Pettitte affidavit. But even if the claim of inadvertence were more plausible that in seems, a serious difficulty with the claim rests in the failure to say anything to that effect when the matter was raised in court.

On the contrary, prosecutor Durham said that there had been no objection from the defense or that the reference to the Laura Pettitte affidavit was part of Congressman Cummings’ question (Tr. 33-34, 37-38, 43), noting in one instance (Tr. 38) that, as such, it “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,” prosecutor Durham simply stated (Tr. 44): “This exhibit is in the context of a question that is asked to Mr. Clemens specifically.” All of these statements seem to suggest a position that the prosecution did not have to redact that material unless the defense objected and perhaps did not have to redact them even if there were an objection.

In this regard, the discussion in Section C of Clements I of the prosecutors’ statements regarding their motives is worth reading for the following reason. Whether or not one considers that discussion at all insightful, it reflects no inkling that the government’s position was that the presentation of the unredacted material had failed to recall that Laura Pettitte’s affidavit was discussed in the clip. Rather, the discussion reflects a failed effort to infer from prosecutor statements whether they recognized an obligation to redact the material regardless of any objection from the defense. And, as noted, most of prosecutor Dunham’s statements at the hearing in fact suggest that they did not.

The Opposition, however, maintains (at 14) that the government understood that it had the responsibility to redact the references to the Laura Pettitte affidavit and made such understanding clear at the July 14 hearing. The opposition supports such claim by the fact that, having been told of such responsibility by the court, prosecutor Durham stated that “[w]e’re not evading any responsibility, Your Honor.” Few would read that broad denial as an acknowledgement that the prosecutors’ had previously recognized the responsibility. If it can be read to mean anything specific, it would seem better read as an indication that, consistent with the other statements the prosecutor made in defense of the failure to redact the material, the government did not previously recognize an obligation to redact references to the affidavit in questions by Congressman Cummings. Thus, it would appear, we observe a post-July 14, 2011 theory as the circumstances that supposedly underlay the prosecutors’ innocent intentions on July 14.

Both in its opening and concluding paragraphs, the section of the opposition that attempts to refute suggestion of an intentional violation of the court’s order notably conflates the issues of whether the prosecutors acted improperly in presenting the unredacted clip with that of whether they intended to goad the defense into seeking a mistrial. That the prosecutor several times denied any wrongdoing, whether such denials were candid or not, does support the argument that there was no intention to cause a mistrial. Indeed, after they had put Congressman Cummings’ forceful reliance on the Laura Pettitte affidavit before the jury, the prosecution would unlikely want to have to retry the case in circumstances where they would be prevented from doing that again. But the denials do little to refute the defense claim that the failure to redact the material was deliberate misconduct.

In the succeeding section (at 19-23), the opposition argues that additional evidence of the lack of an intention to goad defendant into seeking a mistrial exists in the fact that prosecutor Durham had suggested that a curative instruction would solve the problem. Arguing that the prosecutors had no reason to believe that the court would find the suggestion wholly unacceptable, the opposition cites (at 20) D.C. Circuit law to the effect that “a court should ‘normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently put before it.” The opposition also points out that even after the court indicated that it was granting a mistrial, the government requested permission to brief the matter (in which it presumably would have cited authority to such effect).

The point adds weight to the case that the government did not want to cause a mistrial. But the existence of the D.C. Circuit law on which the government relied – though it be unsound law for the reasons addressed in the August 15, 2011 Truth in Justice item mentioned above – is but additional evidence that the prosecutors believed they would suffer no serious harm, while possibly deriving a substantial benefit, from leaving the video and transcript unredacted.

In Clemens I, I suggested that Judge Walton ought to consider the candor with which the prosecutors explained the motivations for their action in determining whether the government will be permitted to retry Roger Clemens. Assuming Walton should conclude not only that the prosecutors intentionally presented the Cummings’ discussion of the Laura Pettitte affidavit notwithstanding that (as now acknowledged) they recognized an obligation to redact it, but compounded their misconduct by seeking to mislead the court as to their intentions, it would be unfortunate if Walton found that prevailing law prevented him from barring a second trial.

But for the government to attempt to deceive the court in order to conceal the nature of prosecutors conduct is a serious matter and the court ought to resolve whether such attempt occurred regardless of whether the resolution will affect whether the case can be retried.

On August 29, 2011, the defense filed a reply to the government’s opposition. As in the initial motion, in the reply the defense points out that the prosecutors made no effort to interrupt the video as it approached the inadmissible material, a point that goes to the deliberateness of the violation of the order, though not, it would seem, to whether the prosecutors intended to cause a mistrial. With regard to the latter matter, among other things, the reply provides (at 10) some detail as to why the prosecutors would have been unsatisfied with the jury. It would require an understanding of the jury selection process that only involved counsel have to evaluate the strength of that point. But that it took over four days to impanel a jury suggests that jury selection was deemed an important matter by both sides.

The reply notes that the government has presented no evidence and criticizes the opposition’s discussion of the lack of a need for an evidentiary hearing. While not specifically requesting an evidentiary hearing on the prosecutors’ motives, the reply suggests that unless the court can rule for the defense on the record so far developed, it should hold such a hearing.

Saturday, August 20, 2011

Arlin M. Adams and the Benjamin Franklin Medal for Distinguished Public Service

by James Scanlan, Esq.

In addition to being mentioned in any number of the twenty-plus Truth in Justice items I have posted over the fourteen months (links to which are available here), Judge Arlin M. Adams is the particular subject of a February 22, 2011 item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams,” and a March 16, 2011 item styled “The Arlin M. Adams Interview.” Adams is the former federal appeals court judge who from 1990 to 1995 served as Independent Counsel investigating abuses of programs administered by the Department of Housing and Urban Development (HUD). Adams was also several times a leading Supreme Court candidate and would likely have been appointed to the Court in 1971 but for his having angered Attorney General John N. Mitchell. The referenced items note that Adams is one of the most revered former jurists in the county and the esteem with which he is generally regarded has since been further reflected by the American Philosophical Society’s honoring him with the Benjamin Franklin Medal for Distinguished Public Service.

But most readers of the two Truth in Justice items and the materials they make available would conclude that at the same time that Judge Adams was refusing to recuse himself from matters involving former Attorney General Mitchell in United States v. Dean, attorneys under his supervision were fabricating a claim that Mitchell and the defendant Deborah Gore Dean had conspired to defraud the United States. They would also conclude that Adams himself was personally involved in many of the prosecutorial abuses in the case, including both (a) the presenting of the false or misleading testimony of Supervisory Special Agent Alvin R. Cain, Jr. in order to enable Robert E. O'Neill to falsely lead the jury to believe that Dean lied about a conversation with Agent Cain (discussed, among many other places, in the June 29, 2011 Truth in Justice item styled “Robert E. O’Neill’s Tricks of the Trade – One”) and (b) the decision to attempt to deceive the courts in covering up the actions of Independent Counsel attorneys concerning Agent Cain and other matters.

Reader opinions may vary as to the extent to which the abuses in the case occurred because Mitchell caused Richard Nixon to break a promise to appoint Adams to the High Court and perhaps as to whether the types of abuses that occurred in the Dean case are commonplace when prosecutors are not closely supervised by a person of principle. But few will dispute that the abuses were pervasive or that Adams bears substantial responsibility for them. And some readers of the March 8, 2011 Truth in Justice item styled “The Remarkable Careers of Sometimes Prosecutor David M. Barrett” will suspect that the reasons Adams allowed David M. Barrett, a person Adams had ample evidence to indict for involvement in abuses of the programs investigated by Adams, to himself become an Independent Counsel investigating HUD Secretary Henry Cisneros involved Adams’ concerns about the way any actions taken against Barrett might influence the trial judge handling the Dean case. But while some matters may allow for differing interpretations, as time wears on, the publicly available picture of Adams’ character, as reflected in his service as an Independent Counsel, is likely to become more, not less, disturbing than the publicly available picture I have so far created. And thoughtful observers naturally will wonder how often the traits exhibited by Adams when exercising a public trust might have otherwise influenced his conduct over the sixty-plus years since he began the practice of law.

The closing paragraph of the February 22, 2011 Truth in Justice item suggested that in the event that my interpretation of Adams’s conduct becomes widely known, entities that have been named in honor of Judge Adams at the University of Pennsylvania, Drexel University, and Susquehanna University may find the Adams name to detract from their stature. The situation can even be deemed tragic in the case of Susquehanna University’s Arlin M. Adams Center for Law and Society, an institution whose admirable missions include the promotion of a criminal justice system that would preclude the type of conduct perpetrated by Adams and his subordinates in United States v. Dean or severely punish such conduct when it occurs.

It should be recognized, however, that each of referenced instances of naming something in honor of Judge Adams occurred when there was little or no readily available information calling his character into question. The same does not hold for the American Philosophical Society’s April 29, 2011 presentation of the Benjamin Franklin Medal for Distinguished Public Service. The medal, named for the Society’s founder, is quite prestigious and recipients of it and the predecessor Benjamin Franklin Medal have included many appropriately venerated individuals of national and international prominence, as well as, in 1906, the Republic of France.

In the case of the award to Judge Adams, the selection committee included the Society’s highest officers and three members from the organization’s Class 5 (Arts, Professions, and Leaders in Public and Private Affairs). Unfortunately, however, it seems that no one involved in the selection process saw fit to thoroughly research Judge Adams on the internet, a process that would have yielded the above-referenced February and March 2011 Truth in Justice items, the Arlin M. Adams profile, and varied other items suggesting that Judge Adams ought not to be honored with a prestigious award without a careful investigation into whether publicly available materials so critical of his conduct as Independent Counsel have a factual basis.

Such, at any rate, was the implication of responses to my recently bringing some of these materials to the attention of certain members of the selection committee. Sensibly, the Society now will examine these materials carefully, at least to know whether it made a serious mistake – and because, after all, it is a philosophical society devoted to the pursuit of knowledge. Also sensibly – and regardless of its conclusions about Judge Adams – the Society will recognize the wisdom of hereafter taking at least the easy steps to determine whether there exist reasons to believe that a proposed recipient of one of its awards might not be exactly as he or she seems.

There is an irony here involving a matter that both reflects on the selection committee’s judgment and suggests an explanation for the failure to adequately investigate Judge Adams’ worthiness of the Franklin Medal. The narrative accompanying the award to Judge Adams explains that he has been a member of the Society since 1979 and has held numerous offices in the organization, including President, which position he held from 1993 to 1999 (apparently assuming the position the same year that he was overseeing the Dean trial). While it would require some discussion within the Society as to the precise purpose of the public service medal to fully resolve the matter, there is a serious question whether the Society should ever give the medal to a former officer of the Society. And that would hold whether or not service to the Society played importantly into identifying the recipient. As with Judge Adams’ involvement in a prosecution of the stepdaughter of the person who kept Adams off the Supreme Court, leave aside what effectively was a posthumous prosecution of former Attorney General Mitchell himself, there are situations where appearances are important. In any case, there is reason to believe that it was precisely because, as a result of his long association with the Society, and hence that Judge Adams’ background and character were believed to be well known to the Society, that the selection committee forewent the due diligence that one hopes would typically be exercised by an organization when it honors an individual with so prestigious an award as the Benjamin Franklin Medal.

But what’s done is done. And, like many things the prosecutors would never have done in the Dean case had they believed those things might be discovered, some things cannot be undone. Time will tell whether the award to Judge Adams materially detracts from the prestige of the Benjamin Franklin Medal or of the American Philosophical Society. But it would be surprising if the award ultimately did either any good.


The American Philosophical Society’s situation regarding whether to learn the truth about Judge Adams’ conduct in the prosecution of United States v. Dean case raises some issues akin to those facing the Department of Justice with regard to its learning the truth about the conduct of others in the case, including Bruce C. Swartz (for the last decade the Deputy Assistant Attorney General in the Criminal Division in charge of international issues) and Robert E. O'Neill (recently appointed United States Attorney for the Middle District of Florida). So far the Department of Justice has refused to learn that truth, or, in any event, to act in a manner consistent with its knowing the truth. See, e.g., Truth in Justice items of February 6, 2011 (“Bruce Swartz - Our Man Abroad”), March 10, 2011 (“Criminal Division Deputy Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”), June 4, 2011 (Willful Ignorance at the Department of Justice, and its Consequences), and August 15, 2011 (“The Ever Rising Star of Criminal Division Deputy Assistant Attorney General Bruce C. Swartz,”). If nothing else, these items suggest that it is always better to learn the truth, even an unpleasant truth, sooner rather than later. That holds regardless of whether one is bound by the duties that are supposed to guide the Department of Justice or by the aspirations that guide a philosophical society.

Monday, August 15, 2011

The Ever Rising Star of Criminal Division Deputy Assistant Attorney General Bruce Schwartz

by James Scanlan, Esq.

On July 27, 2011, Bruce C. Swartz, the Department of Justice’s Criminal Division Deputy Assistant Attorney General responsible for international affairs, testified before the Senate Judiciary Committee in support the Consular Notification Compliance Act of 2011. The act provides for review of federal and state cases where a foreign national was sentenced to death without having been provided the treaty-guaranteed opportunity to contact a representative from his nation’s consulate. Supporters maintain that the act is important to ensuring that United States citizens arrested abroad are afforded an opportunity to contact the American consulate. Swartz also maintained to the Committee that the act is important to ensuring foreign cooperation in transnational criminal justice and anti-terrorism matters. Keynotes to Swartz’s written and oral testimony were reciprocity and trust.

Swartz has been featured in a number of my Truth in Justice items over the last year. See, e.g., items of September 4, 2010 (“Doubtful Progress on Professional Responsibility at DOJ”), February 6, 2011 (“Bruce Swartz - Our Man Abroad”) , March 10, 2011 (“Criminal Division Deputy Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”), and June 4, 2011 (“Willful Ignorance at the Department of Justice, and its Consequences”). These items discuss, inter alia, the Department of Justice’s implied assurance to foreign nations before whom Swartz represents the Department that Swartz is a person of integrity – an assurance that the Department would have great difficulty justifying.

Swartz has also been discussed in a number of very recent Truth in Justice items. The June 29, 2010 item styled “Robert E. O’Neill’s Tricks of the Trade – One (The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.),” which is the first of a series on deceitful tactics employed by Robert E. O’Neill in the prosecution of United States v. Dean, discusses the need to recognize that Swartz’s perverse brilliance likely had an important role in the particular subject of the item. That point will apply as well to matters addressed in forthcoming parts of that series. The July 26, 2011 item on the mistrial in the Roger Clemens case (“Will the Truth (About the Prosecutors) Come out in the Clemens Case?”) discusses, in the context of anticipating the prosecutors’ impending opposition to the defense motion to preclude a second trial, that Swartz’s post-trial conduct in the Dean case provides a useful case study of impermissible deceptions and evasions of government lawyers in responding to allegations of prosecutorial abuse.

The items mentioned above, which address Swartz’s involvement in pervasive prosecutorial abuses in the Dean case and his efforts to deceive the courts in covering up that conduct, suggest that Swartz is a manifestly unsuitable person to represent the Department of Justice concerning matters were trust is at issue. Nevertheless, even as representatives of foreign nations read these items or the Bruce C. Swartz profile and come away with disturbing pictures of Swartz’s character, Swartz continues to be the key Department of Justice official addressing international issues and interacting with foreign nations.

For example, in addition to the recent Senate Judiciary Committee testimony, in mid-May 2011 Swartz accompanied Assistant Secretary of State for International Narcotics and Law Enforcement Affairs William R. Brownfield, and Criminal Division Assistant Attorney General Lanny Breuer on trips to Portugal, Ghana, and Liberia to address transnational crime issues. On June 2, 2011, Swartz represented the Department of Justice in a meeting with the Home Secretary of Bangladesh to discuss matters related to the Mutual Legal Assistance Act, the Anti Money Laundering Act, and the Anti Human Trafficking Act. On June 6-7, 2011, Swartz represented the Department at a meeting of the Anti-Corruption Sub-Group of the Civil Society Working Group (CSWG) of the U.S.-Russia Bilateral Presidential Commission. Swartz, who is one of the U.S. Co-Chairs of the Anti-Corruption Sub-Group, appeared on a panel reporting on American and Russian experiences and ideas for future cooperation.

But when I discuss the prodigious incongruity of the Department of Justice’s putting Swartz forward to represent it in dealing with foreign nations, even no doubt with respect to assuring foreign nations that their citizens will receive a fair trial in the United States, it should be recognized that very few people in the Department know that Swartz can be fairly seen as epitomizing prosecutorial abuse. I doubt, for example, that Assistant Attorney General Breuer, Swartz’s immediate superior, knows anything of substance about Swartz’s conduct in United States v. Dean, much less the extent to which such conduct has been publicized. Similarly, Jeffrey M. Olson, a Department of Justice official accompanying Swartz to the meeting with the Bangladeshi Home Secretary, probably has no reason to suspect that Swartz is anything other than a person of the great integrity that one assumes the Department of Justice demands of a person representing it to foreign nations.

The Russian Co-Chair of the Anti-Corruption Sub-Group of CSWG, Arkady Tonkoglas, Director, Department of International Cooperation, Ministry of Justice, probably knows more about matters calling Swartz’s integrity into question than Swartz’s Co-Chair from the United States Department of State, Elizabeth Verville, Deputy Assistant Secretary for Crime, Bureau of International Narcotics and Labor (though persons from the Department of State do review the Swartz profile from time to time). I suspect that at any meeting that includes Swartz and other representatives of the Department of Justice or other United States agencies as well as representatives of one or more foreign nations, the representatives of the foreign nations are more likely to be familiar with issues concerning Swartz’s integrity than the representatives from the United States. For the representative of the United States assume that they know all that it is necessary to know about Swartz, while representatives of foreign nations may prepare for a meeting with Swartz by researching him on the internet. And it is not possible to conduct such research without being taken immediately to one of the referenced Truth in Justice items or the Swartz profile.

The lack of knowledge of Swartz’s conduct in the Dean case does not exonerate the Department. The Truth in Justice items referenced in the second paragraph discuss that the Department recently refused to determine whether Swartz’s conduct in the case indicates that he is unfit to represent the United States citing a policy that the Department will not investigate matters that were or could have been raised in litigation. It should be evident that, even if there might exist circumstances where the policy is a reasonable one, it provides an absurd basis for refusing to consider matters that bear on the fitness of a person to hold a high position in the Department. Thus, whether or not the Department relied on the policy in good faith, one can have little faith that the Department will take even the most minimal measures to ensure that persons who represent it at home or abroad are persons of integrity. See the October 3, 2010 Truth in Justice item styled “Whom Can We Trust?” regarding the Department’s purported reliance on the policy to refuse to consider whether Robert E. O'Neill lied in the course of seeking the position of United States Attorney for the Middle District of Florida.

The Department official most responsible for the situation, of course, is Swartz himself. Given the widespread availability of my accounts of his conduct in the Dean case, Swartz has a clear obligation to advise his superiors of the existence of such accounts, advising them as well, while subject to 18 U.S.C. § 1001, of whether the accounts are correct and of whether there also occurred serious abuses that I have overlooked. I doubt, however, that Swartz has fulfilled that obligation. More likely, as in the Dean case itself (see especially Section E of the Swartz profile and other places discussing Swartz’s covering up of what most would regard as the suborning of the perjury of Supervisory Special Agent Alvin R. Cain, Jr.), Swartz is subordinating the interests of the Department of Justice and the United States to his personal interests. But it is with regard to the failure to fulfill this obligation that conduct for which Swartz can be condemned is not something that happened a long time ago, but something that occurs on a continuing basis and that may compromise important national interests.

In any case, Swartz’s star continues to rise at the Department. The March 10, 2011 Truth in Justice item discussed whether Swartz’s actions were responsible for the refusal of Switzerland to extradite Roman Polanski (which, more important, also gave Switzerland reason to distrust the United States), and whether Swartz’s superiors may have demanded an explanation. But whatever the facts of that matter, neither it nor the increasingly widespread publication of accounts of Swartz’s conduct in the Dean case has done him apparent harm at the Department. According to this Washington Post item, on April 28, 2011, Swartz was one five officials from the Department of Justice or FBI receiving a Presidential Rank Award, the nation’s highest honor for federal civil servants. The award was accompanied by a bonus of 35% of salary.

Legal Fictions and Farces

by James Scanlan, Esq.

It was with regard to the legal fiction that a wife acts under her husband’s direction that Mr. Bumble famously retorted that if such was the law’s view, “the law is a ass – a idiot.”

A comparable obtuseness exists in the law’s belief that a judge’s instruction to disregard statements improperly put before a jury can neutralize the effect of such statements when the jury would otherwise consider them of consequence. As conscientious jurors struggle to reach a just verdict, especially with conflicting testimony, many will believe that the moral course is to disregard the court’s instruction rather than disregard statements that might assist them in a difficult search for the truth. And even jurors who are committed to following the judge’s instruction commonly remain influenced by statements they think they are disregarding.

Thus, in the Roger Clemens case that is the subject of Truth in Justice items of July 27 and August 4, 2011, D.C. District Court Judge Reggie B. Walton wisely rejected the prosecution’s suggestion that a simple instruction to disregard a video presentation of inadmissible evidence could effectively counter its impact on the jury.

In the case of United States v. Dean that is the subject of more than a dozen Truth in Justice items over the last year focusing on the misconduct of Independent Counsel attorneys including Robert E. O'Neill (currently United States Attorney for the Middle District of Florida) or Bruce C. Swartz (currently Deputy Assistant Attorney General for the Department of Justice’s Criminal Division), there occurred far less insightful appraisals of the effect of a curative instruction. As with other matters in the case, several instances of deception on the part of the prosecutors were also involved.

A. Trial and Post-Trial Proceedings

Robert E. O'Neill is the United States Attorney who was recently appointed to the position notwithstanding indisputable evidence that he lied on his Florida Federal Judicial Nominating Commission application regarding the initiation of a District of Columbia Office of Bar Counsel investigation of his conduct in the Dean case and notwithstanding that the false statement on his application or like false statement elsewhere during the process of securing the position almost certainly violated 18 U.S.C. § 1001. As discussed in the September 26, 2010 Truth in Justice item styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience,” O’Neill has a penchant for calling people liars in his prosecutions, often provocatively, as in his “a liar is a liar” remarks in United States v. Spellissy. O’Neill may well use the tactic when he personally tries the pending case against former Hillsborough County Commissioner Kevin L. White, a cases involving the same false statements statute under which O’Neill could himself be prosecuted until 2014 or 2015. See the July 18, 2011 Truth in Justice item styled “United States Attorney Robert E. O’Neill and the Impending Prosecution of Kevin L. White.”

When O’Neill prosecuted the Dean case as an Associate Independent Counsel in 1993, a substantial part of his closing argument was devoted to repeatedly asserting that the defendant, Deborah Gore Dean, had lied on the witness stand. O’Neill used some form of the word “lie” over 50 times in the context of statements either that Dean herself lied or that Dean had falsely accused others of lying. The pervasiveness of such statements, which are listed here, is probably unrivaled in reported cases. Among them were such provocative statements as that Dean’s testimony “is rotten to the core,” “is lies piled upon lies,” and “is filtered with lies,” and that “[y]ou can throw it out the window into a garbage pail for what it's worth, for having lied to you.” While the case included a number of false statement and perjury counts, almost none of O’Neill’s “lie” statements, and none of the more provocative ones, related to those charges, which O’Neill hardly discussed at all. Rather, the statements were aimed generally at attacking Dean’s credibility.

The attack on Dean’s credibility was quite important to the prosecution’s case. As discussed in the June 29, 2011 Truth in Justice item styled “Robert E. O’Neill’s Tricks of the Trade – One
(The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.
)” (Trick I), O’Neill even pressured Supervisory Special Agent Alvin R. Cain, Jr. into giving misleading or false testimony in order that O’Neill could falsely lead the jury to believe that Dean lied about calling Cain in April 1989 to complain about the treatment of former Attorney General John N. Mitchell in a HUD Inspector General’s Report authored by Cain. (While appearing to categorically contradict Dean, the testimony had been crafted, though imperfectly, to literally mean only that Dean had not called Cain on the date the report was released internally at HUD, ten days before Dean received a copy of it.) O’Neill’s claims that Cain’s testimony showed that Dean lied on the stand were not necessarily couched in his most provocative language (e.g., “We had to bring [Agent Cain] in just to show that she lied about that” and “Al Cain told you, the Special Agent from HUD, that conversation never ever happened.”), but they were forcefully presented. And, given that Cain’s testimony appeared to directly contradict Dean regarding a key matter and given that Cain was a black government agent and Dean was being tried before an entirely black jury, O’Neill’s usage of Cain’s testimony comprised the most compelling part of O’Neill attack on Dean’s credibility and probably the most compelling part of the entire argument.

Later parts of the Tricks of the Trade series will show other deceptive actions O’Neill took in order to enable him to lead the jury falsely to believe either that Dean lied or that Dean falsely accused others of lying, some of which matters are already treated in the Robert E. O’ Neill profile and related materials. See, for example, the Russell Cartwright Receipt document concerning the way O’Neill confronted Dean with a receipt of a lobbyist that O’Neill knew to be false, and then pressed her to state that the receipt must be false, in order that O’Neill could later lead the jury to believe that Dean falsely accused the lobbyist and others of creating false receipts.

After the case was presented to the jury, D. C. District Court Judge Thomas F. Hogan became concerned about some case law taking issue with a prosecutor’s stating that a defendant lied. The case law in the area may generally be described as reflecting two concerns. First, a prosecutor’s assertions that a defendant lied may be inflammatory. Second, the assertions may be perceived as reflecting the personal opinion of the prosecutor, which it is believed would carry substantial weight with a jury. For example, a prosecutor’s explicit statement that in his or her personal opinion the defendant lied would typically be a compelling basis at least for a new trial.

With regard to the first matter, it warrants note that calling a person a “liar” is rather more inflammatory than stating that the person lied. And, while O’Neill’s argument was certainly inflammatory, he never actually used the word “liar.” With regard to the second matter, while O’Neill’s remarks may well have come across as his personal opinion (as they apparently did to Judge Hogan), he was careful to avoid any explicit statement that the remarks reflected his personal opinion.

In any event, after consulting with counsel about a D.C. Circuit case holding, according to Hogan, that statements that a person lied were improper “personal comment by counsel,” Hogan decided he should provide the jury what he regarded as curative instruction. Tr. 3589-91. He did so in these terms (Tr. 3593-95):

“Okay. All right, Ladies and Gentlemen, first as to the arguments you heard yesterday and the day before, I take it, but particularly as to yesterday and the day before, the closing argument and more particularly as to the prosecutors' closing arguments, there were comments made as to using the word ‘liar’ or ‘lying’ and the like, and it is obviously, the issue is for you as the jury to make a decision keeping in mind the evidence in the case, and it is not the opinion of counsel, that is, whatever their personal belief is, that is appropriate, so that an argument to you that someone is lying is really an expression of personal opinion by the attorney, as opposed to pointing you to the evidence and saying it's for you to make up your mind whether or not someone is telling the truth. I want you to keep that in mind.

“It's the evidence you have to focus on and not the statements of counsel, which I informed you previously are not evidence in the case.

“The Court will be sending back to you shortly the exhibits in the case, and as I said previously, then you review the exhibits along with your recollection jointly of what the evidence is in the case, the testimony of the witnesses, and in following my instructions, you deliberate on that basis. And you're not to be influenced by any personal expressions of whether someone is worthy of belief or not by counsel in the case.”

Thus, while O’Neill had avoided the provocative term “liar,” Hogan himself used the term in purporting to remind the jury what O’Neill had said. More important, in the first paragraph of the instruction, Hogan three times suggested or stated to the jury the statements that the defendant had lied were in fact “the opinion of [the prosecutor],” the “personal belief” of the prosecutor, or the “personal opinion” of the prosecutor, adding in the third paragraph a reference to the prosecutor’s “personal expressions of whether someone is worthy of belief.” Thus, in his effort to cure the problem that the jury might perceive that the statements reflected O’Neill’s personal opinion, Hogan repeatedly stated explicitly that the statements were O’Neill’s personal opinion.

There is an irony here beyond that in Hogan’s doing what O’Neill had been careful not to do. As reflected in Tricks I and the O’Neill profile, much of the time, and possibly the overwhelming majority or all of the time, when O’Neill stated that Dean had lied, his personal opinion was that Dean had not lied. In the case of the two assertions that the Dean lied about her conversation with Agent Cain, for example, not only was it O’Neill’s personal opinion that Dean had not lied, O’Neill knew with absolute certainty that Dean had not lied.

When Dean filed a motion for a new trial based on pervasive prosecutorial abuses, at a February 14, 1994 hearing, Judge Hogan recognized that the abuses were indeed widespread, including that Independent Counsel attorneys had reason to know that at least two government witnesses had lied. And Hogan repeatedly noted his concerns about the “cumulative effect” of identified abuses, observing (at 29) that it was “almost impossible to quantify the[ir] total impact” on the defendant’s ability to defend herself. Typically, when one party has created a situation where it is impossible to sort things out (in this instance, the prosecution), a court is expected to rule against that party, which for a time it appeared Hogan was going to do. Nevertheless, with little more than a page of explanation, Hogan refused to grant a new trial. Tr. 32-33.

But Hogan separately, and summarily, treated the closing argument issue as follows (Tr. 33):

“[The Government] also is accused of improper closing argument, I think the Court took care of that appropriate[ly] with its own sua sponte instructions it gave after consulting with counsel about it that this was, it had to be recognized, a perjury case, and it's very hard to argue a case of perjury unless you are allowed to refer to the defendant's testimony and have the jury consider what it's worth and taking all that into account.”

Given that the statements as issue had almost nothing to do with the perjury charges, as Hogan had to know, the reference to perjury is at least disingenuous. But even if the point were pertinent, the casual deference to the curative instruction reflects an obliviousness to a reality in which the instruction to disregard the prosecutor’s personal opinion was unlikely to have any appreciable effect on the jury while Hogan’s several statements that the prosecutors’ remarks in fact reflected the prosecutor’s personal opinion were likely to have substantial effect on the jury. Moreover, while he may not have been aware of the fact when he gave the instruction, by the time he relied on it, Hogan had ample reason to know that many of O’Neill’s statements that Dean had lied could not have reflected O’Neill’s personal opinion.

Hogan had additional reason to know that eight days later when, at a February 22, 1994 hearing, he was faced with defense request for a discrete inquiry that was likely to show whether Agent Cain committed perjury with complicity of Independent Counsel attorneys when he denied that Dean had called him in April 1989. If that or anything close to it had occurred, it would mean that four days after Hogan for the third time had chastised O’Neill for what Hogan regarded as playing to the racial differences between the defendant and the jury (Tr. 3899-901), O’Neill had done the same thing in the extreme by calling a black agent to lead a black jury falsely to believe that the white defendant had lied. It would also mean that for two months leading up to the hearing, Independent Counsel attorneys, including the respected former court of appeals judge and now Independent Counsel Arlin M. Adams, had been deceiving Hogan in order to cover up their actions concerning agent Cain (indeed that Deputy Independent Counsel Bruce C. Swartz was at that very hearing deceiving Hogan to his face, and doing so in a manner that most judges would regard as insulting to their intelligence, as discussed in Addendum 3 to the Bruce C. Swartz profile).

But even though Hogan on the same day made clear that he believed that Dean had called Agent Cain as she said, he denied the request for discovery. And even though Hogan’s statements at the hearing of February 14, 1994, already had impliedly found that the government had been putting on evidence that it knew, or had compelling reason to believe, was false, on this occasion, observing with regard to the Cain matter (at 21) that that the evidence “doesn't mean of necessity the government is putting on information they knew was false before the jury,” Hogan declined to find out whether in point of fact the government was putting on information its representatives knew was false.

There are occasions when the law, as administered by some, prefers not to know the truth.

See the February 22, 2011 Truth in Justice item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams” and a May 31, 2009 document styled “The Independent Counsel’s Use of Dean’s Off-the-Stand Remark about David Barrett and the Judge” regarding possible motivations for Hogan’s decision.

B. The Appellate Process

While the fact that Hogan himself told the jury that the statements that Dean lied reflected the prosecutor’s personal opinion escaped attention in the district court, the Independent Counsel recognized that they might present a problem on appeal. Such recognition is best reflected by the Independent Counsel’s brief in the court of appeals, which was signed by Bruce C. Swartz, the subject of many Truth in Justice items concerning, inter alia, his repeated efforts to deceive the courts in responding to allegations of prosecutorial abuse (as discussed in Addendum 7 to the Bruce C. Swartz profile). In addition to quoting Hogan’s disingenuous observation that the case was a perjury case (at 54), the brief twice emphasized the distinction between "personal opinion" and argument, observing after citing two D.C. Circuit cases (at 53): "This Circuit has long recognized the distinction between a prosecutor's expression of his personal opinion as to a witness's veracity and his argument based on the evidence that a witness's testimony is a lie." It then noted (at 53-54): “At no point did the prosecutor violate the injunction against expressing his personal opinion regarding Dean's credibility."

Whether or not the brief correctly characterized the way O'Neill's comments would be perceived by the jury, it accurately identified the absolute prohibition of a prosecutor's expression of personal opinion because of the weight such opinion would be expected to carry with a jury. Yet, when the brief then went on to argue that, in any event, the district court's curative instructions had satisfactorily addressed the matter, the brief would describe those instructions as follows at (58):

“[T]he court specifically instructed the jury that while the words ‘lie’ and ‘lying’ had been used in the closing arguments, the ‘issue is for you as the jury to make a decision depending on the evidence in the case,’ since ‘[i]t's the evidence you have to focus on and not the statements of counsel, which I informed you previously are not evidence in the case.’ Tr. 3593-94.”

Comparison of the above-quoted language with the actual instruction reveals that the brief has drawn material from the first two paragraphs of the instruction, but has eliminated from the quotation of the first paragraph the three instances in which Hogan advised the jury that the statements were in fact the personal opinion of the prosecutor. Specifically, the brief excludes the following material:

“... and it is not the opinion of counsel, that is, whatever their personal belief is, that is appropriate, so that an argument to you that someone is lying is really an expression of personal opinion by the attorney, as opposed to pointing you to the evidence and saying it's for you to make up your mind whether or not someone is telling the truth. I want you to keep that in mind.”

Moreover, the brief presented the matter in a way to avoid any indication that material was elided. The brief instead gave the impression that it was simply paraphrasing the court’s statements.

In its May 26, 1995 decision, after citing a number of the more provocative “lie” statements by O’Neill (¶¶130-36), none of which involved the perjury charges, the court of appeals stated (¶137):

“’Lies’ and ‘lying’ are hard words. But this was closing argument, not a polite social conversation. Dean was charged with perjury. The prosecutor had every right to argue that she had not told the truth.”

Then, while indicating that it was not greatly troubled that the prosecutor would use hard words in the circumstances, the court pointed out that that the important thing was that the prosecutor “refrains from giving his personal opinion.” It concluded by stating (id.):

“In this case, to the extent the prosecutor's remarks spilled over into expressions of personal belief, or may have been so perceived by the jurors – for example, ‘she's the only one we know who definitively did lie’ – the district court cured the problem. The court instructed the jury not to consider the opinion of counsel about who lied because it was up to the jury alone to decide who was telling the truth.”

The statement, while seeming not to recognize the extent to which the district court’s instruction explicitly confirmed any impression that the remarks were the prosecutor’s opinion, seems to recognize at least that the court’s curative instruction did make a reference to personal opinion. Yet, given the recognized impact of the perception that the remarks are a prosecutor’s personal opinion has on a jury, it would seem virtually impossible to correct the problem by telling a jury that, while the statements are the prosecutor’s personal opinion, the jury should simply disregard them. Thus, as with Hogan, the court of appeals’ handling of the matter seems rather casual and thoughtless.

When Dean sought review in the Supreme Court, the Independent Counsel opposition (there authored by Deputy Independent Counsel Dianne J. Smith and retained counsel Charles Rothfeld and Michael E. Lackey, Jr.) again, by omission, reflected the drafters’ concern about the problematic nature of the district court’s instruction. But in this instance, while implying that it was quoting the district court’s “curative instructions” on which the court of appeals had relied, the opposition (at 11-12) ignored those instructions entirely. The opposition instead quoted from the court’s earlier general instructions on credibility. These were given on a different day and about 60 transcript pages away from the problematic instruction on which the court of appeals had actually relied.

Whether the Independent Counsel’s approach in the court of appeals or Supreme Court would be deemed an honest one – and I doubt that either court would so regard it ¬– the manner in which the Independent Counsel diverted the courts from Hogan’s statements that the remarks were the prosecutor’s personal opinion does highlight the problems with an instruction that tells a jury that the prosecutor’s statements that a defendant had lied were in fact the prosecutor’s personal opinion.

The considerations that would typically require a new trial where the prosecutor explicitly states that he is expressing his personal opinion ¬regardless of any curative instruction apply with like force, perhaps with greater force, when the court, albeit mistakenly, tells the jury that the prosecutor was expressing his personal opinion.

See the May 31, 2008 document styled “The Putatively Curative Instructions that Informed the Jury that the Prosecutor’s Provocative Statements that the Defendant Had Lied Reflected the Prosecutor’s Personal Opinion” regarding some additional aspects of this matter.

Thursday, August 04, 2011

Will the Truth (About the Prosecutors) Come out in the Clemens Case? – Part II

by James Scanlan, Esq.

This item follows on a July 26, 2011 item styled “Will the Truth (About the Prosecutors) Come out in the Clemens Case.

On July 29, 2011, the defense moved to preclude a second trial in the Roger Clemens obstruction of congress/false statements/perjury case. The motion persuasively argues that the prosecutors engaged in misconduct when they presented a video in which Congressman Elijah Cummings described evidence that the court had ruled could not be presented to the jury. The motion somewhat less persuasively argues that the prosecutors engaged in this conduct for the purpose of causing the defense to seek (and secure) a mistrial, which purpose the motion acknowledges is a necessary criterion for precluding a retrial.

The motion was noncommittal on the nature of the evidence the court should consider in interpreting the prosecutors’ intentions. It discusses that prosecutor intent is commonly inferred from circumstantial evidence and maintains that the objective factors support the defense’s contentions as to that intent. Motion 20-21. But the motion also indicates that after reviewing “the quantum of evidence introduced in [the government’s] memorandum of opposition,” the defense may seek an evidentiary hearing on the prosecutors’ state of mind when the government improperly presented inadmissible evidence in the first trial. Id. 19.

As suggested above, one plausible interpretation of the prosecutors’ intentions is the following:

(1) The prosecutors deliberately violated the court’s order regarding the inadmissible hearsay, while believing that they would ultimately get away with it and that the improperly presented material would influence the jury even if it should be stricken.

(2) The prosecutors did not intend to cause the defense to seek (and secure) a mistrial.

Assuming these are the facts, some prosecutor would believe they faced a dilemma. Acknowledging misconduct as to the first matter will compromise the prosecutors’ credibility as to the second matter and could subject the prosecutors to sanctions by the court, the bar, or the Department of Justice. Such acknowledgment might also disqualify the prosecutors from personally retrying the case in the event the court permits a retrial. And it will make the government look generally untrustworthy.

But if the prosecutors were to attempt to deceive the court as to the first matter, and were unsuccessful in doing so (as they are likely be), the court could be even less receptive to their arguments as to the second matter. The court might well also fault (and in some manner sanction) the government and/or the prosecutors for the additional misconduct in the effort to deceive the court.

There is no real dilemma, however, because there is no choice involved. Government attorneys must advise the court of their true intentions at to both matters. Moreover, the Department of Justice must itself ensure that the prosecutors are forthcoming as to their true intentions, and being truly forthcoming should entail the prosecutors’ providing sworn declarations concerning their thinking. But any effort to deceive the court on either matter, whether undertaken through false statements or misleading or evasive arguments, is an egregious act of prosecutorial abuse.

There is reason to believe that not every prosecutor recognizes their obligation in this regard, and I am not sure the Department of Justice itself recognizes the obligation. But it is hard to imagine that the Department would ever argue otherwise. In any case, the government’s opposition is due on August 19, 2011. As I suggested in the earlier item, it should be a revealing document regardless of whether it is forthcoming as to the prosecutors’ intentions. In the event that the defense seeks an evidentiary hearing on the prosecutors’ intentions, the matter could prove increasingly interesting.

Wednesday, August 03, 2011

Innocence Roundup: Struggles to succeed

From Grits for Breakfast Blog,

(Note from Truth in Justice: I would love it if blogspot could come up with a link that I could use to just link to other blogs on the same system, but until then, I'll do block-copy-paste. And if you don't subscribe to Grits for Breakfast, you really should ...)

Habeas, 'actual innocence,' probation and misdemeanors
The debate over postconviction relief for "actual innocence" has mostly centered around extremely serious crimes involving rape or murder. That's mostly because DNA evidence didn't exist or wasn't preserved in other types of cases and without it, the odds of exoneration under existing legal standards are extraordinarily long. DNA evidence exists in 10% or less of violent crimes and not at all in most other cases, leaving few avenues for overturning convictions in less serious cases. But that doesn't mean false convictions don't occur in drug and property crimes or misdemeanor offenses, just that those defendants are far less likely to ever seek or receive relief. Most

Jordan Smith at the Austin Chronicle has a story of a man seeking habeas relief based on actual innocence for a misdemeanor assault for which he was convicted and received probation in high school (shooting a teacher with a bb-pistol from a moving car). The local press at the time (Statesman and Chronicle) ran heart-tugging stories featuring teachers calling for his prosecution and ouster from the school. The fellow who actually did the deed has come belatedly forward to accept responsibility. The conviction has prevented Cleo Hill from several jobs he sought, and now he wants the conviction overturned so he can attend nursing school. "This is the first filing to my knowledge [in Texas] of a writ of actual innocence for someone who's never been in jail," said his attorney. "In this case, Cleo wants to go to nursing school, something he can't do with an assault misdemeanor on his record." Wrote Smith:

Hill's experience provides a bitter confirmation that guilty or innocent – and whatever the punishment – a criminal history is a life sentence. While it differs in important ways from prison time, it remains a heavy, lifelong burden. Professor William Kelly, director of the Center for Criminology and Criminal Justice Research at the University of Texas, says policymakers generally consider only concrete terms of punishment like probation or jail time, seldom the legacy of conviction itself. "The reality is that the punishment continues into the future," said Kelly. Once the jail time or probation period has ended, there will always be that question on any job or housing application: Have you ever been convicted of a crime? "If we could dip offenders into punishment and pull them out, it would be okay," said Kelly. "But that's not how it works."

Having a record can paradoxically force someone deeper into criminal activity. "Being labeled early on does nothing to ensure the likelihood of success," said Kelly. "In fact, it perpetuates a cycle of reoffending." Kelly concedes that many felony charges have justifiably significant, continuing consequences, but he believes a lifetime record is disproportional for a misdemeanor. "We have to ask ourselves, is this really the impact that we want to have?"

'Sixteen and life to go'
Continuing with the theme of innocent people not exonerated, John Browning at the Southeast Texas Record has part one of a story titled "Sixteen and life to go," in which he describes a likely innocent man who it now appears may never be exonerated. (See the story for details of the case.) Chad Uptergrove was tried as an adult when he was 16 and just celebrated his 32nd birthday in prison, having now spent half his life behind bars. The Court of Criminal Appeals recently denied him habeas relief. There was no DNA evidence to prove his innocence conclusively and a Brady violation (failing to tell the defense about an exculpatory witness) was deemed harmless error, which pretty much the only type of error the CCA thinks prosecutors ever make.

Struggling to succeed: Exoneration and reentry
Exoneree Calvin Johnson out of Waco spent 15 years behind bars for a rape and murder he didn't commit before he and his co-defendant were cleared by DNA of the offense in 2001. According to the Waco Tribune Herald, though (subscription only), Johnson struggled after his release, ultimately succumbing to a heroin addiction that has now landed him back in prison with an eight year sentence. The new conviction makes him ineligible for the annuity which was made retroactive in 2009. The Trib's Cindy Culp reported:

Washington’s experience is not unique. Experts who work with exonerees said the majority experience problems after their release. Most don’t go back to prison, but a “large minority” do, said Vanessa Potkin, a senior staff attorney for the national Innocence Project.

“It’s understandable for those who have been debilitated by what they’ve been through,” Potkin said. “It’s more shocking, I think, that so many thrive, do so well and contribute to society.”

A total of 272 people in the United States have been cleared by post-conviction DNA testing, according to the project. It does not have data on how many of them have been arrested after their release.

But research done by the New York Times in 2007 showed one-sixth of exonerees returned to prison or suffered from drug or alcohol addiction. Most struggled to keep a job, rebuild relationships and deal with the psychological scars of wrongful imprisonment, the newspaper reported.

The story goes on to feature the Texas Exoneree Project - which is a group of Texas exonerees who've formed a support group out of Dallas to help one another and others newly exonerated.

The group played a key role in the passage of improved compensation measures during the past two legislative sessions, [Innocence Project of Texas policy director Cory] Session said. Plus, members show up every time a newly exonerated Texan is released.

“They travel around the state to help that next person,” Session said. “(Because of that), exonerees are getting a lot more help than ever before.”

Charles Chatman, who spent 27 years in prison after he was mistakenly identified in a rape case, said he can’t overstate how critical the group has been to him. Some of the issues exonerees face can’t be understood by anyone else, he said.

Family relationships often have to be rebuilt from “ground zero,” Chatman said. Navigating new technology can be tough, too. He said he can still remember how frustrated he felt the first time he tried to use an automatic checkout lane at the grocery store.

Finances can be another stumbling block, Chatman said. The compensation money is helpful, but it also creates problems. A number of people in the group have had to deal with demanding relatives or unscrupulous financial advisers, he said.

“Everybody takes advantage of us,” Chatman said. “It really hurts.”

The group doesn’t push specific advice on new exonerees, Chatman said. But it lets them know members are available to help as needed, he said.

Compensating Anthony Graves
Finally, the Texas Tribune has an update on changes to the state compensation law that will allow Anthony Graves and others similarly situated to receive compensation for their false convictions - even if the case wasn't overturned based on a habeas writ finding "actual innocence" - if the judge and prosecutor agree they were falsely convicted. "The measure also makes wrongfully imprisoned people eligible to receive the same health benefits given to employees of the Texas Department of Criminal Justice for a period equal to the time they spent in prison. Their families, however, would not qualify for coverage, and the individuals would still have to pay a monthly contribution."