Should the Government Get to Re-Try Roger Clemens?

Just today a federal judge granted a mistrial for Roger Clemens in his perjury and obstruction trial in Washington, D.C. During the federal government's case, it began playing a video recording of Clemens' testimony before Congress (in which he allegedly lied because he told them he never took steroids or other banned substances.) In that video were comments by a Congressman referring to Andy Petitte's wife's statement in which she repeated that her husband told her that Clemens admitted to taking the substances. Before trial, the judge had ruled that her repetition of what her husband told her was not admissible. It was clearly inadmissible hearsay. (However, Andy Petitte can testify to what Clemens told him, since that is proper evidence of a party's direct admission.)

Ostensibly the unredacted Congressman's comment was an oversight by the prosecutors. However, if Clemens' lawyers can show that it was not a mistake but an intentional act, he could get the case dismissed under the Double Jeopardy clause. Ordinarily, under a 1982 U.S. Supreme Court case, Oregon v. Kennedy, when a mistrial is granted after a defendant's motion (as here), the defendant cannot then bar a second trial. However, if the prosecutors can be proven to have intended to "provoke the defendant into moving for a mistrial," then a double jeopardy dismissal could be granted. Obviously it will be hard to show their oversight in Clemens' case was intentional. Without a clear pattern of violating the court's rulings, intentional conduct will not be shown--short of a prosecutor admitting it!

The real question is: "Should the government be trying Roger Clemens at all?" Many people have derided the use of 'precious government resources' in going after a now retired, well paid athlete who never harmed anyone (save for a few batters.) After all, aren't there more important crimes to prosecute than lying to Congress? For starters, if they didn't try him, wouldn't Barry Bonds' supporters be crying foul (not fair?) And what about Martha Stewart, who was convicted of lying to federal investigators, wouldn't her fans bemoan federal waffling?

And what are federal authorities supposed to do? Let a few lies go and say "Ok, it's only baseball, and Congress shouldn't be concerned about some ballplayers doping themselves anyway!" No, they couldn't let it go. He's too well known in sports and was really one of the 'great' players like Bonds. It would smack of favoritism or elitism or whatever people think lets the rich and the famous off the hook.

Nope, the goverment should re-try Roger Clemens.

In Memory of the Sweetest Client I Ever Had

My friend and former client, Leon, just passed away. He had been sick and suffering from endstage lung cancer for the last few months. Yet he always could laugh. Just recently we were watching the basketball playoffs together at the nursing home, and despite his pain, we made jokes about the awful looking food sitting on his tray that he had no appetite for.

I met him in January 1984 when I was a public defender. He was charged with assault after he was attacked and defended himself a bit too well. The victim was a bully and had been harassing Leon all night at a CD tavern. When Leon finally went outside, more to leave than to fight, the bully came at him punching. In the scrum, he grabbed Leon's ankles and tried to take him down. Leon pulled a steak knife from his sock and began stabbing the aggressor in the back while the bully gripped his ankles. When they were pulled apart, the victim collapsed.

About a month later, the victim died, and Leon was charged with murder in the second degree. We raised self defense at trial but the jury disagreed and convicted him. Some of the jurors, who grew to like Leon, came to his sentencing but he was still sent to prison for 20 years to life. On the appeal my buddy Mike Filipovic did the bulk of the work and we won Leon a new trial. That's because the self defense instructions the judge read to the jury were improper. During the two years of the appeal, while in prison, Leon sobered up and luckily missed the raging crack epidemic that hit the inner city.

Before his new trial we convinced the judge to release him pending trial, since he had such a perfect prison record and had no record of violence before the 1984 case. This time Mike helped me with the second trial and we were up against a persuasive prosecutor, Ray McFarland (who has since become a friend and fellow defense attorney.) Despite our best effort at that second trial, the jury once again would not let Leon off.

But we weren't done. Back in those days, judges had more discretion at sentencing. And our trial judge, the Honorable Robert Elston, was a stickler for rules and the law. However, he was also an independent thinker. Somehow we convinced him that Leon had rehabilitated himself in prison, was no longer drinking and not a threat to society. Amazingly, he put Leon on probation for murder.

And Leon did not disappoint us. After a number of uneventful years on probation, his case was closed. Over the next 20 years or so I would see Leon every so often. He would come to my office and we'd go to lunch or I'd 'loan' him some money. Once he hauled some trash away from my house for me. He got married and divorced and always seemed to have a lot of friends, especially among the ladies. About 5 years ago he moved back to Texas where he was from so he could be near his sister and other family. For reasons I never understood, that did not work out so he moved back to Seattle.

His last two years or so were rough. I would go see him at the hospital or his public housing apartment down on Holly Park. I would try to bring him his favorite 'pulled pork' sandwich and we'd eat lunch together. Church ladies, in-home careworkers, and others always seemed to be hovering over Leon's bed. He'd flirt with them all and everyone loved Leon. He was a guy who reached out to people. He seemed so full of love--it's hard to believe he could ever harm a fly let alone kill another human being.

In the end, Leon's beauty is that he proved how a man can better himself. I will never forget him.

Speedy Justice after the Egyptian Revolution?

We are all happy to see Hosni Mubarak go. When I was in Egypt late last year, people grumbled about the 'old pharoah,' but no one hinted at what would happen this year. And now the revolution kicks in with the nitty gritty: trials of the deposed leaders.



The "once feared and powerful" Habib el-Adly, Interior minister and head of the hated security apparatus of the deposed regime, came into court and pled not guilty to corruption charges. The allegation is that he sold a piece of public land to a contractor for personal gain. This kind of corruption was apparently endemic in the Mubarak era. No doubt people who stuffed their pockets in public jobs should be prosecuted.



But so fast. . . the new regime has been in power only since February 11, and an indictment has already been prepared? Does this bode well for due process as we understand it? It seems typical of many revolutions to rush to judgment, particulary harsh ones for the former officer-holders. I think of Madame Defarge knitting while the nobles of the 'ancien regime' had their heads lopped off in short order.



During el-Adly's 'arraignment,' one of the lawyers was screaming insults at the accused. Now, I've had prosecutors lambast my clients but not by screaming at an arraignment. Luckily the judge displayed a cooler head. He quickly shut the lawyer up, calmed down the proceedings, and then postponed it a month--to allow the defense lawyers to review the documents.



This is speedy justice compared to our tortuous system. To begin with, it would have taken U.S. prosecutors months not 2 weeks to prepare an indictment this important, and then the defendant would be given ample time to review the prosecutor's case before going to trial. Although slow and deliberate, our rules require a speedy trial, which more often than not the accused agrees to extend to allow for more time to investigate the case. Justice cannot be speedy if the accused needs more time.



Speedy justice really means hurried justice which usually means no justice at all. Besides, speedy justice allows emotion to prevail, not law and reason. So the pace of events in the Egyptian court portends trouble. In the meantime, Egypt is working out a new constitution and a system to ensure fair elections. I hope they reform their society with all deliberate speed, but not in a rush to judgment.

Paranoia Strikes Deep

Recently I represented a 70 year old man who had been a teacher and a businessman for many years. He gave back to the community by volunteering as an umpire and referee for youth sports. He was not the kind of person I expected to need my help. And yet. . .


He was working as a substitute teacher for a second grade class. One of the boys in his class would not return to his seat, so he asked him to come forward. He asked the boy if he'd like to be picked up by his ears. He promised it wouldn't hurt. So he told the boy to grip his wrists as hard as he could and use his brain power and concentrate. With the small boy putting all his weight on the teacher's wrists, the teacher used the forefinger and thumb on each hand to "pinch' the boy's ears and lift him a few inches off the ground. It's a trick he has used for many years: young kids think he is lifting them by the ears when in fact he is using their weight placed on his wrists to lift them. It is perfectly harmless. It is a way to give wayward boys some attention and to keep order in the room.


While he was doing this, apparently some teacher looked through the door window and complained to the principal about this. Without further ado, the principal relieved my client of his duties and sent him home. The kids in class later 'confirmed' he lifted the boy by his ears, even though the boy told the principal his ears did not hurt. The prinicipal called the police.


The police wanted to talk to my client. Ordinarily, I am reluctant to let clients talk to the police. For one, it rarely helps. The police will be filing their report with the prosecutor no matter what the client says, even if a valid defense is raised. Secondly, much of the time clients end up making statements that, shall we say, do not amount to a valid defense. In other words, they help make the case against them. And third, the police can misconstrue, misunderstand or simply get what my clients say wrong. There is also the problem that some clients lie and make it worse. So, the soundest advice is silence. Silence cannot be misconstrued and silence cannot later be used to raise an inference of guilt on account of the Fifth Amendment. In short, silence is golden.


However, in this case, being charged would be a real problem for my client. The school district that used his substitute services immediately removed him from their list of substitutes on the ground that he would be criminally charged. And the State Superintendent of Public Instruction (SPI) started an investigation, which threatens his certification.


Luckily, the police officer investigating the case was reasonable and willing to hold off any decision to send the case for filing to the prosecutor until she heard from my client. With the possibility of no referral of charges, I talked to my client. He told me his story and his background and I believed him. He was innocent and articulate enough to be able to convince a police officer of that. I didn't think he could hurt his case, only help it.


We went to see the police officer at her precinct, and after a very cordial conversation, she told us she did not think charges would be filed. Later she told us that the prosecutor reviewed the reports and agreed not to charge. Although not an acquittal by a jury, this was an even better result since no court record of a charge would be created.


Of course now my client has to confront the SPI investigation as well as petition to be placed back on the school district's list. But at least he can claim exoneration in the criminal investigation.


The bigger question: have we, as a nation, gotten so paranoid that we call in the police at every turn? Here was an experienced teacher and a wonderfully decent man who was shabbily treated by officious, over-protective administrators. Sure, we have to protect our children and sure, there are bad people out there. But how about a little common sense? Not every touch is deviant! After all, state law holds that "the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child." (RCW 9A.16.100.)

Maybe the principal should have looked a this law and then taken a detailed story from my client as the police were willing to do. But the principal did not and called the police instead. So I conclude with apologies to Buffalo Springfield, "paranoia strikes deep, into your life it will creep, it starts when you're always afraid . ."

The Inquest: Should the officer be charged?

Let me start by emphasizing that I am not a prosecutor and have never been one, except for a summer stint while in law school. But as a criminal defense lawyer, I have been involved in my share of murder cases. So I am coming from that angle.
I did not attend the recent Inquest. My information is based on what The Seattle Times and other publications printed. My understanding is that the officer saw this guy, stopped his car, ordered him to drop his knife, began approaching him and shot him four times, killing him. The victim appeared to have turned toward the officer but no witness described an aggressive move by the victim. Even the officer could only describe an aggessive "look." After all, only 4 seconds elapsed from the time he got out of his car until he shot him.
The Inquest jury of eight that heard this case was not unanimous. However on this key question: "Based on the available information at the time Officer Birk fired his weapon, did John T. Williams then pose an imminent threat of serious physical harm to Officer Birk?" Four jurors said no; three answered unknown and one said yes. This is the type of question a jury in a criminal case would ultimately answer: was this killing justified by the lawful use of force? (i.e, self defense.) My interpretation of the response to this question is that only one juror out of eight thought the killing was justified. According to the jury, they applied the beyond a reasonable doubt standard when they answered the questions posed. That is the same standard as a criminal case.
If a killing is not justified, shouldn't a jury of 12 decide if it is murder? I have handled several murder cases where we raised self defense because the other person, the victim, had started the fight. In one case, my client was punched several times and then in the scuffle drew a knife from his sock and began stabbing his opponent while they grappled. They were pulled apart and later the victim died. Two different juries found him guilty. (He won a second trial after a successful appeal.) Another case involved a man with a long record of violent crime who threatened to kill my client who ran into his house, got his gun and shot the victim 7-8 times from his porch, as the victim kept screaming "I'll kill you," though the victim had no weapon in his hand. In both cases, the juries felt that excessive force was used. They were instructed on the law which required that the lawful force employed be "not more than necessary." After the trials of those cases, the jurors all said my clients had a right to use self defense, but that they went too far.
The officer in the recent inquest went too far as well. He shot someone who was not an imminent threat four times. Wasn't that excessive force, or more force than necessary? If he were not a police officer, he would probably be prosecuted. However, the law gives him more protection. Under RCW 9A.16.040(3): "A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section." To be sure, most of the Inquest jurors agreed that he believed he was under an imminent threat. In other words, he was not acting in bad faith. What is more this law defines an imminent threat as "displays a weapon in a manner that could reasonably be construed as threatening." This statute will probably insulate the officer from prosecution.
The recent history of juries rejecting criminal prosecutions of police will also influence the prosecutor. Even where an officer is caught on video beating up a teenage girl, it shows how hard it is to get juries to convict the police of crimes. Of course, the officer in the Inquest case is likely to be sued, so there will be some civil justice.

The Advantage of the Well Connected Snitch.

Recently I had a client go before a federal judge for sentencing on a mortgage fraud case. He was sentenced to 15 months in prison. Here was a guy who had no prior record whatsoever. Everyone who knew him liked and trusted him. Since the crime was completed several years ago, he found a new job and his boss loved him. And yet, despite my best effort to save him from prison, and to save his job, the judge sent him away. The judge relied on the seriousness of the crime to deny a lesser sentence. No question it was serious: he may have to pay back as much as $915,000 to the original lenders for his involvement.

The fraud worked this way: the con artist/businessman leader of the fraud originally convinced his friends and relatives he had a way to make money in the exploding real estate market of the early part of this decade. He would have them 'invest' in real estate by agreeing to sign loan papers indicating they were going to buy and occupy a home. This would enable them to get the lowest possible loan rate, as banks historically believed that owner/occupants were the safest borrowers. The catch (and the big lie on all the loan applications) was that they were not really owner/occupants. Instead the con artist would actually pay them to just use their name and good credit. They were "straw buyers." Then the con artist would pay more than the asking price to the seller, claiming it went to a fund to improve the property and pay the mortgage. But he actually siphoned off the money for his own use.

When this 'fund' began to dwindle, he would recruit another person to "buy" the property at a higher price. Up to 2008, the spiralling market permitted such quick flips. Many people made a lot of money this way. And the banks and lenders never seemed to scrutinize the borrowers or their applications much. Since real estate prices were always going up, it was all about the property and not the borrower. And anyway, the lenders did not hold onto the loans, but sold them off to other investors. These were then sold in bulk as collaterized debt obligations to other investors. So the lenders were recklessly indifferent. (Hence a lot of bank and mortgage company failures.)

Originally my client loaned money to the con artist and was initially paid back. Then he was asked to be a buyer for two properties, knowing full well that he was lying on the loan applications because he was not occupying the property. And then he recruited two more people to be "straw buyers." He helped one "straw buyer" lie on the application form by agreeing to corroborate falsely inflated income. This was probably his worst sin. Later, when he was confronted by the feds, he confessed and told the truth.

Now many of you may say that this type of fraud has hurt our economy. And people who engage in this should be punished hard. Examples must be made and messages sent to the community that this type of fraud cannot go unpunished. This is all true but. . . why does prison have to be the answer for a serious crime? Particularly where the individual involved is remorseful, rehabilitated and has been positively contributing to society for nearly three years since the crime? We proposed a combination of community service work, 6 months of home detention and 30 days in jail. The judge rejected this for a 15 month prison sentence. Aren't we punishing ourselves by locking up positive contributors? And anyway, don't we have too many people in prison already?

Even more galling, and typical of the 'logic' of federal sentencing is the 8 month sentence of a codefendant. A codefendant the government lawyer told the judge was equally culpable with my client. That codefendant worked for a lender, was an insider and betrayed that trust. And yet because he was able to cooperate and name names at his bank (whom the government will probably charge separately) he got a lighter sentence.

That is the ultimate 'message' the court sends: If you're caught and you are sufficiently intertwined with other lawbreakers, you can optimize your position by turning on them. You will do better than less knowledgeable but equally culpable lawbreakers. Sometimes people higher up in the criminal hierarchy get lower sentences than people near the bottom who aren't as involved.

What does that have to do with punishment and rehabilitation? Actually, it has more to do with law enforcement. Since the Supreme Court reinstated judicial discretion and did away with mandatory guideline sentences, the courts look to the "purposes" of sentencing. Helping the government prosecute other people is not a "purpose" of sentencing but it is a goal of law enforcement. So in this instance, the federal judge gave the ability to help law enforcement a greater reward than rehabilitation.

Is that justice?

A Trip to a Police State

I just returned from four weeks of travel in Egypt. It was fantastic--the temples, pyramids and other sites were magnificent. The people were warm and welcoming--the mere mention of President Obama would bring high fives and fist pumps. They seem to love Americans. I say "seem" because Egypt is run by an all powerful, modern "pharoah." His family and cronies literally own the country and you have to wonder if everyone has been indoctrinated. After all, the U.S. government is a huge contributer to their military budget, not to mention nonmilitary aid.

It is also a police state. The 'Tourist and Antiquaties' (T & A) police are everywhere. Outside all but one of our hotels, the white uniformed and armed cops were stationed. All monuments had varying levels of security. Some had airport style security; others had X-ray machines; and others just had the T & A police eyeballing all of those who entered. At virtually all junctions on roads outside the cities, there were checkpoints with gates, guards and guns--big ones! Egypt has had 3 major terrorist actions since 1997: one at Luxor, one at Sharm el Sheikh and one at Taba--the latter two are on the Sinai peninsula. These were all directed at tourists. Since Egypt is dependent on tourism, their security is essential. In fact, when we travelled overland from Mt. Sinai to Sharm el Sheikh we had a plainclothes bodyguard in our van--at no expense to us. He wore a dark wool suit and carried a submachine gun on his hip. He was muscular and resembled actor, Eric Estrada. When we flattered him with his resemblence, he began smiling. Turned out to be a likable fellow.

Other T & A police would attempt to direct you to the 'good' parts of monuments. Then they would hold their palms out for some 'baksheesh.' (That's a tip or a bribe, depending on circumstances.) While we were at the Citadel--Saladin's famous walled compound on a hill overlooking central Cairo--one white uniformed fellow offered to take us on a personal tour of the old British prison where Anwar Sadat was once held. Since it was not open to the public, we paid him the 5 pound baksheesh. All too often, they wanted baksheesh just for pointing at a picture spot. We were free to decline. Locals, however, such as taxicab drivers, complained to me about police who demanded baksheesh just to let them pull over and pick up tourists.

The obvious downside is that civil liberties are not protected here. I imagine the local newspapers don't criticize the government much. To be sure, the English language ones did not. Our guides were always very defensive about their government much less their heritage. To such a degree that when I asked a guide about the possibility of human sacrifice at the Abydos monument (as reported in National Geographic) some 4,000 years ago, she denied it and replied that all sorts of misinformation is out there.

I shudder to think what political dissidents must go through. Given the fragile balance of freedom v. terrorism, it would too easy for the government to label critics as terrorists and then treat them accordingly. The U.S. government has enough trouble with that equation. In private moments with educated people such as guides, now and then they would bemoan the current regime. But it was hard to imagine a truly free, contested election in the near future there.

One advantage of a police state is that the crime rate is very low. According to the State Department site, violent crime is rare in Egypt. This is consistent with my experience there. Early in our trip I met an Egyptian who lived (ironically) in Alexandria, VA, but was visiting his mother in Cairo. He told me tourists are gold. The government protects them and people do not want to fall into disfavor with tourists. Thus he said it was safe to walk virtually anywhere--as long as you could resist the incessant attempts to sell you something.

Selling and touting can be irritants, but they are not threatening. Although every price is negotiable, except restaurant prices, once you reach an agreement on price it is respected. Of course tourists are vulnerable to overpaying, as I did in my first taxi ride. The lesson was to learn the right price for the trip and tell the driver BEFORE GETTING IN THE CAB that is what you'll pay. Even then, one time I said the 4 of us would pay 15 Egyptian pounds (~3$). The driver nodded. At the end of the ride the cabbie tried to claim 15 pounds per person. I shook my head no, gave him the agreed price and walked away. Nice try, but I felt safe in standing up for myself.

Egypt has a history that goes back about 5000 years. After about 30 centuries of rule by local Egyptians or Nubians, it was conquered or occupied by a who's who list of nations: Assyrians, Persians, Greeks, Romans, Arabs, Mamlukes, Turks, French and British, to name some. All of these people literally left their mark. Despite being a police state, it is a fascinating place to visit. Go see Egypt for yourself.