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.

Addendum
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.