Wednesday, July 4, 2012

Jury Nullification

With the recent focus on the Supreme Court and its decisions on Arizona's immigration law, the healthcare affordability act, and lab analysts (Williams), a significant decision by Judge Kimba Wood in the SDNY went in large part unnoticed.  The US Attys office had charged 80 year old chemistry professor Julian Heicklen with jury tampering for standing outside of the courthouse and handing out pamphlets advising potential jurors of the their right to exercise the power of jury nullification.  The case had raised a number of issues including the interplay between the statute and the First Amendment.    Judge Wood dismissed the Indictment.  For the full story see:

Someday before I retire perhaps we will see further empowerment of the jury in criminal cases by allowing them to be informed of the potential penalties the defendant faces and their right to nullify.

Monday, June 18, 2012

Clemens Trial: NOT GUILTY

The government's closing was not enough to counter act the unbelievability of Brian McNamee and the overall taint of what was Congress doing to begin with.  Per my multiple early predictions: not guilty.

From the opinion page of the Washington Post: 

Roger never tested positive for steroids, and nothing in his medical records indicates steroid use. His massage therapists testified under oath that they witnessed no physical signs of steroid use. The woman who cleaned his apartment testified that she never saw evidence of vials, needles or steroids.
The Justice Department spent millions of dollars, with more than 90 federal agents interviewing 179 individuals and producing 235 interview reports in a futile attempt to find somebody who gave HGH or steroids to Roger Clemens. It found no one. In this era of celebrity tell-alls, that is remarkable.
Congressional committee hearings are ill-suited to function as courts of law. It’s easy to see what happened: The committee rushed toward a media-fueled hearing and panicked when Roger asserted his innocence proactively in the days before the hearing. Lawmakers over-relied on thin witness testimony and referred Roger to the Justice Department to save face. Inexplicably, prosecutors announced their intention to indict Roger before even interviewing the chief accuser.

Sidenote: Supreme Court issued a decision today in White v. Illinois.  98 pages long and may subvert recent advances in the right to confrontation.  Will write more expansively on this decision in the near future.

Wednesday, June 13, 2012

Clemens Trial: Jury Deliberates

It is now in the hands of twelve citizens.  Let us celebrate the right to jury trial.  The genius of the Constitution is exemplified by the right to jury trial.  They are the conscience of the community and the ultimate check on government power.

Apparently, AUSA Gilbert Guerrero gave a tremendous closing for the government.  Will it be enough? Will it be enough to counteract the juror who submitted the question that asked Brian McNamee: Why should we believe you?  Why indeed? 

I hold to my prediction: Not Guilty.

Tuesday, June 5, 2012

Clemens Trial Continues

A small setback for the defense and mainly a ruling that saves Congress some embarrassment. In the scheme of things, the jury is already aware of the dubious nature of the congressional hearings to begin with.  The real issue in the case is whether the jurors will believe anything that Brian McNamee has testified to.  This afternoon produced the following:
Lawyers for Roger Clemens today argued unsuccessfully to convince a federal judge in Washington to force Rep. Darrell Issa (R-Calif.) to testify at the former baseball pitcher's trial on perjury and obstruction charges.
The attorneys, including Joe Roden, said Clemens has a right to question Issa, now the chairman of the House Committee on Oversight and Government Reform, over his remarks in February 2008 about the merits of a congressional hearing about drug use in baseball.
Issa expressed concern then in statements to reporters about the underlying legitimacy of the hearing at which Clemens testified. Clemens’s denial of using performance-enhancing drugs is the heart of the perjury case against him in U.S. District Court for the District of Columbia.
U.S. District Judge Reggie Walton this afternoon refused to force Issa to testify. Walton said he was not convinced that Issa’s testimony was “competent” to challenge the prosecution's position that the congressional hearing was a legitimate legislative purpose.

Friday, May 18, 2012

Clemens Trial Continues

Finally, the prosecution's star witness, Brian McNamee, began testifying this week.  While the defense has a treasure trove of impeachment material in terms of prior bad acts, the initial part of the cross examination has focused primarily on McNamee's lies or prior inconsistent statements about the specific allegations McNamee has made asserting he injected Clemens with steroids. Not that the media knows any better than anyone else, one reporter described McNamee as: "Well, I would have to say bluntly, he's the squirreliest witness I've ever seen. My colleague Lester Munson from ESPN calls him generically reprehensible. A lot of other reporters are less polite, and these are folks who don't particularly like Roger Clemens and have covered him."

This part of the cross examination was described as follows: "Rusty Hardin, has put up an easel and on it he's written three words: mistakes, memory - meaning memory problems - and lies. And then he asks the witness he's cross-examining, Mr. McNamee, to put his misstatements into one of those. Are they, you know, memory problems or mistakes or lies? And, over and over again, he's had to admit - although you've got to drag it out of him - that he first lied to federal agents, then to the Mitchell Commission, all of that before he came clean."

Mark my words when the jury begans to hear about McNamee's conduct with his fellow Yankees at the Florida hotel and his subsequent mis truths to law enforcement, it will be lights out for the prosecution.  Game, set, match..Hardin

Friday, May 4, 2012

Roger Clemens Will Be Acquitted

I concede that all the information I have learned is second hand.  What is going on in the courtroom may or may not be accurately reported.  But if the information is accurate, Rusty Hardin is going to win another one, Roger Clemens will be acquitted and become the second baseball player exonerated from having used steroids.

Aside from the fact that Hardin is an extremely skilled lawyer, the facts are starting to go Clemens' way.  While recent attention has focused on Andy Petite's equivocation of the exact nature of his conversation with Clemens, the real show will start when Hardin commences his cross examination of Brian McNamee.  For some strange reason, the national media has mentioned little if any of McNamee's checkered past.  For evidence geeks out there, suffice it to say, Hardin is going to have a field day with 608(b) type of evidence.  In play are numerous prior instances of untruthfulness that includes but is not limited to a bizarre 2001 incident in Florida.  It was briefly described by the defense team as follows: Mr. McNamee repeatedly lied to law enforcement officials conducting a felony criminal investigation in Florida. The investigation concerned a woman who met Mr. McNamee and others at a post-game gathering of New York Yankees players and personnel (other than Mr. Clemens) at a hotel in St. Petersburg, Florida on October 6, 2001, and the circumstances by
which she was rendered incoherent from unknowingly ingesting the “date rape” drug GHB and was found naked and intertwined with Mr. McNamee in the hotel swimming pool later that night. During the subsequent criminal investigation, the Government concedes, as it must, that Mr. McNamee provided false statements to Florida law enforcement officials who were investigating the rape incident.

Things continue to get worse for McNamee from there as detailed in court papers.  Mix in Hardin's skill, skepticism about Congress having the hearings to begin with, Petite's 50-50 comment, and McNamee's lack of credibility and viola: Not Guilty.

Sunday, April 29, 2012

Judicial Recusal

While many of you may think that this entry will address all of the recent controversy in Wisconsin over the recusal issues dominating the headlines, it will not. Instead, it is providing a link to a federal proceeding in a neighboring state.  The case is extremely interesting not only because the defendant is now represented by Wisconsin native and former US Solicitor General Paul Clement but it also brings into sharp focus the inherent problems that arise when judges make their own determination of whether recusal is appropriate.

In 2000, journalist Stephen Bloom published the book: Postville: A Clash of Cultures in Heartland America.  It was an instant bestseller ( named Best Book of the year by MSNBC and the Chicago Tribune) and a fascinating read.  In 1987, Aaron Rubashkin, a butcher from Brooklyn, NY bought an abandoned slaughterhouse outside of Pottsville, IA.  The plant was the center of turmoil in the community for a number of years which culminated with a raid by ICE in 2008.  Federal authorities characterized the raid as the largest criminal worksite enforcement action in history.  A summary of the subsequent prosecution was described as follows:

Five months later, the government arrested the plant's manager, Sholom Rubashkin, on charges of harboring illegal immigrants, but ICE's case had problems. For example, it turned out that an undercover ICE agent had twice tried to secure employment at this plant, but he was turned away because he did not have the proper papers.
It would not do to have such a dramatic raid and nothing to show for it. The Justice Department filed seven superseding indictments charging bank fraud. The indictments included a creative theory — that Rubashkin falsely certified to the bank that Agriprocessors was complying with all the laws even though it was employing undocumented aliens. The federal jury did convict on the bank fraud charges, and the federal government dropped all immigration charges. In the meantime, Iowa indicted Rubashkin for employing child labor. The state initially alleged 9,311 offenses and went to trial on only 83; the trial judge limited that number to 67, and the jury acquitted on everything.
Federal prosecutors recommended life imprisonment. After widespread criticism of such a harsh sentence by many people (including six former U.S. attorneys general), the government asked for a 25-year sentence. Judge Linda Reade, the trial judge, imposed 27 years instead.

But Reade did more than impose a disproportionate sentence. After Rubashkin's conviction and sentence, defense lawyers learned that Reade, over a six-month period, had been actively engaged in planning the Agriprocessors raid.
For more detail read this post.

Monday, February 27, 2012

Elimination of Preliminary Hearings in Wisconsin

A lively discussion took place this morning on WisconsinEye concerning the Attorney General's recent public statement that preliminary hearings in Wisconsin should be abolished. To see the entire debate click here.

Monday, January 23, 2012


For those of you who practice in Federal Court, there has been a noticeable focus on defendant's financial condition. First, it is a major topic during the pretrial services interview, ostensibly for purposes of considering release pending trial. However, I can never shake the feeling that it's real purpose is to set up the defendant for imposition of a fine or for recovering restitution if the defendant is convicted.

Second, there has been renewed focus on recovering restitution from defendants. While the government can literally follow you to the grave trying to civilly recover unpaid restitution, the efforts to collect during a defendant's period of supervised release have reached a new milestone. In the Western District of Wisconsin, the following has now become a condition of post incarceration release:

Special Condition 6: “Undergo at least one financial evaluation per year which may involve use of a polygraph, as approved by the supervising U.S. probation officer.”

Have we really reached the stage of using polygraphs ala sex offenders to verify a defendant's financial condition? Oh boy, one can only imagine what is next.

Hopefully my next post won't be quite as depressing.

P.S. Maybe this will allow defendant's to use polygraphs in a pre-emptive manner at non trial hearings. Sure, and I've got some moon rock for sale.