The Roger Clemens Trial and the Problem of Prosecutorial Misconduct

[Photo from Wikipedia]

As a former federal prosecutor for over 20 years, (and currently, as an Augusta, Georgia criminal defense lawyer), I believe that most federal prosecutors, (Assistant U.S. Attorneys, or "AUSAs"), are good, decent, and honorable attorneys.  But in every profession, including among AUSAs, there are a few who will always try to cut corners, or step over the line, in order to win.  Doesn't it seem that prosecutorial misconduct seems to occur more and more frequently, especially in federal trials, around the country?  While I am not suggesting that the prosecutors in any of the following illustrations are in any way corrupt, or "bad apples," allegations of prosecutorial misconduct have certainly been raised in each of the following cases.  You decide about the alleged misconduct in each case.

For instance, no matter what you may think about the jury's verdict, you will recall that, in the recent Casey Anthony trial, the prosecutor was seen laughing, or smirking, during the defense lawyer's closing arguments.  In my opinion, there is no excuse for such misbehavior in the courtroom by prosecutors, but it happens more than you might realize.  Of course, I have no idea whether or not it had any impact at all on the jury's verdict.

Also, you will recall that the federal fraud conviction of Alaska's Senator Ted Stephens was thrown out, based upon prosecutorial misconduct.  In that case, the allegations centered around the government's withholding exculpatory evidence and witnesses from the defense, which, if properly revealed, might have resulted in a not guilty verdict for Stephens.  In my opinion, this type is an example of prosecutorial misconduct at its worst.

Finally, just this past week, a federal judge declared a mistrial in the perjury and obstruction trial of former baseball great, and seven-time Cy Young winner, Roger Clemens.  Once again, the mistrial was based upon possible misconduct by federal prosecutors.  In this case, Clemens is accused, among other things, of lying at a Congressional hearing about whether or not he had ever used performance-enhancing drugs.  According to news reports, another former baseball pitcher, Andy Pettitte, is expected to testify that Clemens had allegedly admitted to him that he had used human growth hormone.  Supposedly, Pettitte had told his wife, Laura, about the alleged admission.  But, as to Laura, that would be hearsay, so the federal judge in Clemens' case had previously ruled that prosecutors could not use her hearsay testimony to bolster Andy Pettite's testimony. 

However, according to news reports, what the judge had forbidden is exactly what federal prosecutors did this week!  Specifically, the government played a videotape for the jury of a congressional hearing in which a congressman referred to Laura Pettitte's hearsay statement!  Understandably, the judge reportedly got upset!  He excused the jury and declared a mistrial!

A hearing has been scheduled by the judge for September to decide whether or not Clemens can be re-tried after the government's mistake.  Naturally, Clemens' criminal defense attorneys will claim that the prosecutorial misconduct was either grossly negligent, or intentional.  His defense team will also raise double jeopardy as a defense against a retrial.  The government will, no doubt, claim that the mistake was unintentional and ask for another chance.  It remains to be seen how the judge will rule.

Again, I believe that most prosecutors, including most AUSAs, are good, decent, and honorable public servants.  But I also know that prosecutors are human and that mistakes occur.  Moreover, I also believe that some prosecutors are willing to step over the line, in order to win a criminal case.

What do you think?   

Computer Crime, Phone Hacking, and News of the World

[Photo from Wikipedia]

One of the recurring themes of this blog about white collar crime is about the rise of various types of computer crimes.  In short, as a former federal prosecutor, (and as an Augusta, Georgia criminal defense lawyer), I have witnessed in my career that computers and the internet have opened a whole new world to con artists and other criminals.  It seems it is only a matter of time that all of us will eventually become victims of identity theft or some other type of computer crime.

Another recurring theme of this blog involves the threat which modern technology presents to our right to privacy.  For instance, you can't even go out to get a cup of coffee in this country any more without being watched by Big Brother.  (Just think about all the ways you would be watched, or detected, if you visit your local Starbucks!)

But have you heard the news about the burgeoning phone hacking scandal in Great Britain?  On Friday, according to various news reports, Andy Coulson and Clive Goodman, two former editors of the popular tabloid, News of the World, were arrested  and charged with alleged phone hacking and corruption charges.  Of course, they are each entitled to their day in court.  The hacking charges reportedly center around allegations that the phone, or voice mail, of a murdered teenager and phones of families of soldiers killed in action were hacked for salacious news stories.  As a result, yesterday, the last edition of the tabloid was produced.  In short, the tabloid's owners, which include the family of news magnate Rupert Murdoch, pulled the plug on it.

Hopefully, this scandalous news story will serve as a warning to other potential computer and telephone hackers "out there."  It will be interesting to watch as the events in this story continue to unfold!  For now, I suppose I should put on a disguise as I go out for a cup of coffee!  After all, Big Brother is still watching! 

The Widespread Atlanta School System Cheating Scandal

[Photo from kvnf.org]

White collar crime comes in many forms.  Put another way, there are more types of white collar crime than Jiffy Pop has popcorn.  And sometimes, it appears that such crime is just about as widespread as popcorn, too. 

This point was illustrated again this week by reports from Georgia's Governor Nathan Deal about widespread cheating in the Atlanta public school system.  According to a report from the Georgia Bureau of Investigation, agents identified a whopping 178 school teachers and administrators who allegedly cheated on students' CRCT test scores, in order to "improve" their schools' test performances.  Reportedly, incorrect answers on students' tests were erased and changed by teachers and administrators.  Reported improvements in recent years in the Atlanta public school system's test scores had led to raves about school administrators.  Also, improvements in test scores had led to increased grants and funding from public and private sources.  But now, all of the accolades and reported improvement are seriously in doubt. 

Look, I am just an Augusta, Georgia criminal lawyer, not an educator.  It is not the goal of this post to address why such cheating occurs.  But, in your opinion, is there too much pressure or emphasis put on such school achievement tests?  Or is that just an excuse?  And what should happen to teachers who (if it can be proven) actually cheated?  Should they be fired and prosecuted?  What is your opinion?

But the point of this post is to show again that cheating, fraud, and other forms of white collar crime occur in many different ways.  And some white collar crime, as shown in the Atlanta school cheating scandal, is as widespread as Blue Bonnet butter on Southern biscuits!

Lessons From the Casey Anthony Verdict

[Photo from Wikipedia]

Just moments ago, a Florida jury announced its verdict of not guilty for Casey Anthony in the alleged murder of her two year old daughter, Casey.  As a former prosecutor and criminal lawyer for more than 30 years, I have learned, long ago, that you just never know, or can guess, what a jury will do.  Ms. Anthony was also found guilty of several counts of making false statements to law enforcement officers.  But again, she was acquitted on the most serious murder and manslaughter charges related to her daughter's tragic death.

What do you think about our jury system, or this case?

Pork Chops, Partying, and Paramours: Motives in Criminal Cases

[Photo from myrecipes.com]

Can you imagine murdering someone over a pork chop!?  As a former federal and state prosecutor, (and currently, as an Augusta, Georgia criminal defense lawyer), I have always been amazed at some of the motives, or reasons, why criminal defendants committed various crimes.  For instance, we have recently seen, in the Casey Anthony murder trial, a lot of evidence offered by the State concerning why she allegedly murdered her daughter, Caylee Anthony.  The state's evidence of motive reportedly centered around Casey Anthony's alleged desire to kill her daughter, so she could return to a single, partying lifestyle.  Of course, the defense attorneys deny such proof of motive existed.

But as a former prosecutor and criminal attorney, I have seen many other, even stranger, motives for crimes.  For example, as alluded to above, I once prosecuted a man for murdering his son because the son had come home from work and eaten the last pork chop which the father had cooked. 

Also, as a former Assistant U.S. Attorney, I once prosecuted a greedy bookkeeper for stealing elderly nursing home patients' money, so she could satisfy her clothes shopping addiction. 

Finally, in one of my strangest murder cases, I also once prosecuted a father for murdering his daughter's paramour, because of jealousy.  Incredibly, the father, who had had an intimate relationship with his adult daughter, simply wanted to eliminate his competition for her favors and affection.

Perhaps there are as many motives for crimes as there are crimes.  Don't you agree?  Have you ever heard or read about any unusual motives for crimes?  By the way, I claim the last pork chop!

The Casey Anthony Murder Case and Predicting Jury Verdicts

[Photo from visitahc.org]

As I am writing this post, the jury has been out for several hours while deliberating in the Casey Anthony murder trial.  With little more to report, various television news programs are presently featuring criminal lawyers and former prosecutors who are all trying to predict what the Anthony jury will do.  But does anyone really know the particular verdict which this, or any, jury will return?

The straight, simple answer is "No!"  No one, not even the criminal defense lawyers and prosecutors who have just given the closing arguments can really guess what the jury will do.  Jury deliberations are, of course, done in secret.  And that is the way it should be.

Of course, sometimes, as an Augusta, Georgia criminal defense attorney, (and as a former A.U.S.A., or federal prosecutor), I can tell if  jurors are making good eye contact with me, or otherwise paying close attention to me, during closing argument.  The lawyers in the Casey Anthony case will also know how well each side of the case was presented to the jury.

In other words, the lawyers may have hunches.  But that's about it.  Trust me, nobody, not even the lawyers in the case, really, truly knows what is going on in the jury room!  In short, jury deliberation privacy is one of the wonderful things about our criminal justice system!  We, including the public, the lawyers, and the defendant Casey Anthony, will all know the jury's verdict soon enough.

Closing Arguments in Criminal Cases: How Long or How Short Should They Be?

[Photo from Wikipedia.org]

As you may know, as a former state and federal prosecutor, and currently, as a criminal defense lawyer, I have prosecuted, (and now defended), literally hundreds of jury trials over the years.  Today, I want to talk a little bit about the length of closing arguments.  In other words, how long or how short should they be?  Put another way, do you believe that juries of today have the same attention span as juries of one hundred years ago?

As I am writing this post, I am listening to the closing arguments in the Casey Anthony murder trial.  It is expected that the closing arguments in this high profile trial will last only a couple of hours each.

But did you know that, years ago, closing arguments often lasted for many hours, or even for days?  For example, in 1913, during the infamous Georgia trial of Leo M. Frank for murdering Mary Phagan, the closing argument of Solicitor General Hugh Dorsey lasted a whopping nine hours!  This was not unusual!

Today, on the other hand, closing arguments seldom last longer than in the Casey Anthony murder case.  Why?  How are jurors different today?  Here are my guesses.  One reason, in my opinion, is that the psyche, or expectation, of today's juror is much different than the juror of one hundred years ago.  The pace of life was also slower then.  Also, back then, jurors were conditioned or accustomed to long sermons from long-winded politicians and preachers.  Maybe they just expected the same down at the courthouse.  

But in our fast-paced, instant messaging society of today, jurors simply expect to receive more information much more quickly.  Arguably, our attention spans are shorter today, too.  For instance, jurors today expect every t.v. drama to be solved within the hour and before the last commercial!

Regardless of the reasons, closing arguments in today's criminal cases will never be as long as in cases tried one hundred years ago.  But perhaps we are all better off!  Can you imagine having to sit still and listen to any lawyer for nine hours today!?  What do you think?