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Friday, August 26, 2011
Clemens case faces pitcher's count

By Lester Munson
ESPN.com

Boxers or briefs?

You know the answer to that question when you sit in our Courtside Seat, and it ain't boxers. Boxers (that is, athletes who practice the Sweet Science) enter our world every now and then, of course -- they get into legal trouble just like other sportsmen and sportswomen, after all. But we don't concern ourselves with boxers anywhere near as often as we deal with briefs. In fact, briefs are where the action is right now in the case of Roger Clemens, one of the greatest right-handed pitchers in the history of baseball. So today, we start with a brief bad metaphor. We start with the Clemens prosecutors being …

Down in the Count

It was a swing and a miss for Steven Durham and Daniel Butler, an effort that looks as feeble as if the two federal prosecutors were standing in the Yankee Stadium batter's box and facing a Roger-Clemens-in-his-prime split-finger fastball.

It's a good thing for Durham and Butler that they still have a pitch left to try to explain the walk-off transgression that led to a mistrial last month in the prosecution of Clemens for obstruction of Congress.

Strike One was the transgression itself, the prosecutors' failure to eliminate evidence that had been barred in a court ruling.

Steve Durham
Assistant U.S. Attorney Steve Durham offered a chronology for their boo-boo, but not much of an explanation.

Strike Two is the curiously-thin explanation for the blunder put forth by the prosecutors in their otherwise-masterful 35-page legal brief filed last week in the attempt to secure a second trial. Instead of offering a specific and detailed explanation of the circumstances that led to the breach, they wrote only that their error was "inadvertent" and that it was a mistake "made in the press of trial."

Unimpressive.

To preserve their chance for a second attempt to prove their charges against Clemens, the prosecutors must convince U.S. District Court Judge Reggie B. Walton that their error was an innocent mistake rather than an attempt to sabotage a trial that was going badly for them -- which is what Clemens attorney Rusty Hardin suggests it was. It is, according to Hardin, "implausible to suggest that two highly experienced prosecutors in a high-profile case would simply forget to conform" their evidence to pre-trial rulings.

The evidence in question is a video of a confrontation between Clemens and Rep. Elijah Cummings at a Congressional committee hearing in which Cummings uses a sworn statement from Andy Pettitte's wife, Laura, in an attempt to show that the Pettittes were truthful in their claim that Clemens admitted his use of HGH to Andy.

Judge Walton told the prosecutors on the eve of the trial early in July that they would not be permitted to use Laura's confirmation of Andy's claim. On the second day of the trial, however, in a video known as Exhibit 3b-2, the jury saw Cummings waving Laura's statement at Clemens, and the statement's language was displayed on the jurors' monitor screens. That caused the mistrial.

While the prosecutors admit that it was their responsibility to eliminate the Laura Pettitte information from the video, their explanation in last week's brief consisted only of a chronology of the trial events. Apparently, Durham and Butler believe the chronology alone is enough to show Judge Walton that their error was innocent.

Two months before the trial on May 6, the prosecutors explained in the brief, they sent the material from the committee hearing to the Clemens legal team and explained that they would be offering videos to the jury.

Then, on June 28, according to their brief, they met with Phil Barnett, the staff director of the House committee, to "authenticate" the videos. Two days later, they filed their list of exhibits, a list that included the video of Cummings and the Laura Pettitte affidavit.

On July 5, Judge Walton, responding to a demand from Clemens' lawyers, barred all mention of Laura Pettitte from the trial. Jury selection began the next day.

Rusty Hardin
Rusty Hardin, Roger Clemens' lead attorney, is still insisting the prosecution purposely forced the mistrial.

It was then, the prosecutors admit in their brief, that they "made a mistake in the press of trial when [they] failed to return to Exhibit 3b-2 and review it for necessary" removals of barred material.

Why didn't they remove the offending material from the video after Walton issued his ruling? Here is what they wrote in their brief: "These exhibits were not at the forefront of either prosecutor's mind, rather, among other things, jury selection, opening statements and jury instructions were."

That's it. That is their explanation. Two elite prosecutors devote 3½ pages, more than 800 words and four footnotes to the issue, and that is the best that they can do.

The sentence that describes what was at the "forefront" of the prosecutors' minds is the single weakest sentence in the lengthy brief. It fails both in form and in substance.

Its syntax is weaker than the powerful language found elsewhere in the brief. Unlike the rest of the brief, that sentence would not survive scrutiny from a writing instructor.

The verbiage, though, could be excused it offered something significant in the way of legal heft. But there is nothing unusual about prosecutors simultaneously working on "jury selection, opening statements and jury instructions." That's what prosecutors do. It is a routine combination of efforts that undoubtedly was underway for other prosecutors in several other courtrooms in the same courthouse in Washington.

Durham and Butler have prepared dozens of cases for trial. They have selected countless juries. They have given numerous opening statements. And most of the jury instructions are routine forms used in every federal criminal prosecution. It is hard to imagine that prosecutors as skillful and experienced as Durham and Butler were in any way overwhelmed by these activities.

To convince Judge Walton that their mistake was inadvertent and the product of "the press of trial," the prosecutors could and should have offered details of the hours, days and weeks spent in preparation for the trial. They could and should have offered listings of the lawyers, agents and paralegals who were struggling to meet pre-trial deadlines in the Clemens case while working on other cases. And they could and should have described the budget cuts and staff reductions that have made their jobs more difficult.

Federal prosecutors are notoriously protective of their practices and are reluctant to offer public descriptions of their work. They disclose the products of their work only when ordered to do so; even then, they disclose them at the last possible moment.

But if Durham and Butler want a second trial of the charges against Clemens, they must convince Judge Walton that they were overwhelmed with work and that the failure to remove the barred evidence was the result of a staff member, facing a mountain of pre-trial work, failing to accomplish one item on a long list of tasks.

Daniel Butler
Government prosecutor Daniel Butler and his team have one more shot to convince the judge a second trial is in order.

Although lawyers, judges and scholars will argue the issue, it appears that the prosecutors must win at this level of the justice system. They must convince Walton of the merits of their position, because an appeal might not be possible. Federal law bars an appeal when a case is dismissed under the doctrine of double jeopardy.

The language of the law (18 U.S.C. Para. 3731 for you lawyers out there) seems clear: "No appeal shall lie [is possible] where the double jeopardy clause of the U.S. Constitution prohibits further prosecution."

But as thin as their written brief might be on the issue of the circumstances leading to the blunder, the prosecutors still have a strike left before they're called out for good. They have a chance in a hearing before Walton on the morning of Sept. 2 to bolster their argument. They are resisting an evidentiary hearing. They don't want to testify themselves, and they don't want members of their team to be placed on the witness stand under oath. But that may be their last, best chance for a second trial.

Although Clemens attorney Hardin insists that the prosecutors were hoping for a mistrial because the case was going badly, there is not doubt that the prosecutors were doing reasonably well at the beginning of the first trial. The transgression happened on only the second day of what might have been a four-week proceeding.

But to avoid what the prosecutors call an "unwarranted windfall" for Clemens in the form of a dismissal of all charges, they must give Walton more evidence. A swing and a miss is not enough.

Who's in Charge of this Peloton?

Responding to Lance Armstrong's demand for an investigation of supposed leaks to media during the grand jury investigation of Armstrong's alleged use of steroids, federal prosecutors in Los Angeles are asking a federal judge to make a decision that would violate centuries-old customs and practices of the legal system.

The prosecutors, Mark Williams and Douglas Miller, are demanding that U.S. District Court Judge Jacqueline Nguyen terminate Armstrong's effort to investigate possible leaks without ever showing Armstrong's attorneys the facts and the arguments that, they say, support their demand.

Lance Armstrong
Lance Armstrong's team may be aggressive, but it has a valid point about how leaks should be investigated.

They've already filed 37 pages of supposedly secret material describing their investigation without notifying the Armstrong legal team. As Armstrong's attorneys, John Keker and Elliott Peters, have said to Judge Nguyen, they have not "seen a single page of the opposition" to their demand for a court hearing on the claimed leaks.

Because their material contains "extensive details" of their investigation of Armstrong, the prosecutors claim that they are entitled to file it in secret. The legal adjective that describes their filing is "ex parte." An ex parte communication to the judge is a communication that is not shown to the opposing side of the dispute. In most situations, ex parte communications to a judge are viewed as potentially corrupt and are prohibited.

But prosecutors Williams and Miller have told Judge Nguyen that their material involves an "ongoing active, pre-indictment investigation for which secrecy is necessary to preserve its quality and integrity." They're relying on federal laws that protect the secrecy of anything done in front of a grand jury.

Hinting that Armstrong has filed the demand for a leaks investigation only to obtain an early and unauthorized look at the government's ongoing investigation, the prosecutors told Judge Nguyen in a public filing Wednesday that they were worried that a public discussion of their Armstrong investigation would lead to destruction of "evidence of criminal activity," encourage "coordination of stories before testifying," and even lead witnesses "to flee the jurisdiction."

The rules that govern a request like Armstrong's demand for a leaks investigation are clear. Contrary to the prosecutors' claims, the early stages of the inquiry are done in a public courtroom with the judge deciding the likelihood of any leaks and then determining what evidence the government must submit.

When the government begins to submit evidence on the leaks issue, the evidence is filed under a veil of secrecy to protect the grand jury's investigation.

But, in an escalation of what is becoming of an all-out war between Armstrong and the prosecutors, the prosecutors are asking for a head start on secrecy. They want Judge Nguyen to impound everything even before she has made a decision on the likelihood of any leaks.

It's difficult for journalists to support any investigation of leaks. We support and encourage leaks to shed light on activities that might otherwise be kept secret, and we do little to discourage them (although The New York Times in handling documents provided by Wikileaks did filter names and discouraged the public release of material that could endanger specific people). But the government is going a step too far with its ex parte filings.

As Armstrong attorneys Keker and Peters said in a brief filed Thursday, the "government cannot be serious." The prosecutors' demand for total secrecy is, they say, "contrary to the rules and basic notions of fair play."

In an investigation as massive and as important as the government's probe of Armstrong, the government prosecutors should be able to protect the integrity of their grand jury's work without bending and stretching the rules.

Life in the Fast Lane

Finding the correct lane of travel (usually near the rail) has made Calvin Borel one of the most successful jockeys in the history of thoroughbred racing.

His choice of lanes while driving his white 2008 Cadillac last Saturday night, however, has Borel in a bit of trouble. An Indiana state trooper did not like the way Borel moved from one lane to another on U.S. 41 near Evansville, Ind., and pulled him over.

When the trooper smelled what he suspected was liquor on Borel's breath, he put Borel on the breathalyzer and arrested him for driving while intoxicated. Agent Jerry Hissam, who has represented Borel for nearly 20 years, says, "The police told me that he was barely over the legal limit [.08 percent blood alcohol]."

Vanderburgh County prosecutor Nick Hermann has not returned phone calls and emails from ESPN.com, but it's the kind of misdemeanor case that is ordinarily settled in a plea bargain.

Borel, who has been riding at Ellis Park in nearby Henderson, Ky., during the summer, might be the first man ever whose lane usage has given him both a nomination to a hall of fame and a period of time on probation.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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