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

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.

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.

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.

FEDS CONTINUE TO FOCUS ON $$$

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.

Private Financing of Public Prosecutions-Part II

Where does one draw the line? How much private assistance can be rendered by purported victims to local prosecutors in a criminal case? Investigation? Assistance during the execution of a search warrant? Hiring experts to do analyses that will be used in court? Will only wealthy "victims" have their cases handled in an adequate manner by public authorities? Do we use private resources to make cases that would otherwise never be solved? The public policy issues are complex and pose serious questions for the future.

In Massachusetts, the legislature passed a statute which basically, authorized the creation of an insurance fraud prosecution unit in the Attorney General's office. It would be funded by a special assessment on two insurance industry trade groups and the insurance industry will also create a fraud bureau to lend assistance to the state prosecutors. The constitutionality of the statute was challenged in Commonwealth v. Ellis. Unfortunately, the court denied the defendant's challenge in large part due to the fact, that the statute in question left the ultimate decision to prosecute in the hands of the public prosecutors. Additionally, the fact that this was a legislative creation subject to public input and review saved the statue and this form of private industry financing.

In California, the software developer, Borland International, suspected that a former employee had been conveying internal information to a competitor. The Santa Cruz County DA's office obtained a search warrant for the competitor's computers. Borland hired one consultant and the DA's office hired another. Borland paid for both consultants. Additionally, Borland paid for a private service to transcribe audio taped interviews of Borland employees. The trial court's decided to disqualify the entire DA's office from prosecuting the case due to Borland's various funding of the prosecution efforts. On appeal, the question framed was "whether a crime victim's payment of substantial investigative expenses already incurred by the public prosecutor creates a disabling conflict of interest for the prosecutor..." Under a unique provision of the California code, the California Supreme Court ruled yes. See People v. Eubanks, 14 Cal.4th 580 (1997).

Bottom line: With prosecutor positions being limited or cut, this issue will continue to arise and rear its ugly head. Know the law and arguments that need to made. Adios until after Thanksgiving

Wisconsin Innocence Project Moves Forward

Two major events have recently happened at the University of Wisconsin's Law School Innocence Project. While most coverage has concerned the recent financial grant, this past summer, the directors, Keith Findley and John Pray reached out to the community and formed a Board of Advisories. The group includes former and present prosecutors as well as a few well known defense lawyers. The press release is reprinted here:

Veteran Prosecutors, Police, and Defense Attorneys to Join

Wisconsin Innocence Project’s New Advisory Board

New Board Created to Help Steer the Work of the Wisconsin Innocence Project

In Advocating for Wrongly Convicted Individuals and Recommending Reforms to

Improve the Reliability of the Criminal Justice System

CONTACT: Keith Findley, 608-262-4763, 608-335-4544, kafindle@wisc.edu

(Madison, July 12, 2011) – The Wisconsin Innocence Project, a legal education and advocacy project at the University of Wisconsin Law School’s Frank J. Remington Center, announced today the formation of a new Advisory Board. The new Board will include such prominent and respected experts as retired Milwaukee County District Attorney E. Michael McCann and retired Assistant District Attorney Jon Reddin, Retired Dane County prosecutors Judy Schwaemle and John Norsetter, Manitowoc County Assistant District Attorney Michael Griesbach, Port Washington Police Chief Richard Thomas, Madison Police Department Captain Vic Wahl, Marquette Law Professor Daniel Blinka, State Public Defender Kelli Thompson, and attorneys Stephen Hurley, Dean Strang, Stephen Glynn, Stephen Meyer, Gordon “Chip” Davenport, III, James Friedman, and Rebecca Mason, and former client and exoneree (and now attorney) Christopher Ochoa. Additional members may yet join the Board as well.

The Board is being created to advise the Wisconsin Innocence Project on case selection criteria, evaluating difficult cases, strengthening advocacy in individual meritorious cases, and evaluating and promoting policy initiatives to improve the criminal justice system.

University of Wisconsin Clinical Law Professor and Wisconsin Innocence Project Co-Director Keith Findley explained, “The work we do advocating for the wrongly convicted can have profound impact on the lives of the wrongly convicted, victims of crime, and the functioning of the criminal justice system. To help us chart an effective and appropriate course, we thought it best to bring in experienced and respected actors from across the criminal justice system to ensure full and balanced consideration of the issues we confront.”