Roger Clemens Mistrial: Felony Stupid or a Fast Ball?
Reading news reports of the mistrial declared in the Roger Clemens perjury trial, one is left wondering how did the Government not know what was in its own exhibit? As if some paralegal or tech person on the Government team failed to properly edit a videotape shown to the jury.
This was a case the Government not only knew was being closely watched by millions, but a case on which it had a team of prosecutors, backed by investigators, paralegals and technology experts to assist with exhibits. There was even an FBI agent, their lead agent, sitting at counsel table.
It strains credulity to suggest that prosecutors didn't review Clemons entire hearing testimony and carefully select the portions they thought would bring them the most bang for the buck, and then have a video prepared of those segments to introduce as an exhibit for the jury. [More...]
Prosecutors don't just get to play videos for the jury. Videos are not witnesses. They are introduced as exhibits during the testimony of a witness. The prosecutor, with a witness on the stand, will play the video, which has been marked as an exhibit, to the witness (with the jury also able to view it on their monitors), and then ask the witness a question about what was on the video.
Prosecutors, like all lawyers, prepare their questions, or an outline of questions or points they intend to elicit from each witness, in advance. The video would have been watched by the prosecutor when preparing his questions for the witness. And when portions are played in clips (with questions in between) they are marked by the place on the video the clip begins and ends.
In its pretrial memo filed with the Court, the Government stated that one of the obstructive statements Clemens made is:
(12) CLEMENS’s sworn Hearing testimony on February 13, 2008, that a New York Yankees teammate “misheard” or “misremember[ed]” when CLEMENS told this teammate in or about 1999 or 2000 that he (defendant CLEMENS) had taken HGH (Hearing at 86-87);
The Government filed its exhibit list with the Court on June 30. One exhibit is the transcript of the entire hearing testimony. Another is a video of the entire hearing. Then it lists sub-exhibits, consisting of a series of video clips (and transcripts of each clip) showing the various alleged false or misleading statements. For example:
- 3a. Transcript of Hearing - The Mitchell Report - Day 2; Feb. 13, 2008
- 3b. Video of Hearing - The Mitchell Report - Day 2; Feb. 13, 2008
- 3a-1. Transcript of Video Clip (p. 21)
- 3b-1. Video Clip of Hearing - The Mitchell Report - Day 2; Feb. 13, 2008 at 00:34:17:8
- 3a-2. Transcript of Video Clip (pp. 86-90)
- 3b-2. Video Clip of Hearing - The Mitchell Report - Day 2; Feb. 13, 2008 at 00:41:30
The transcript and clip about Clemons' answers regarding Andrew Pettitte are Exhibits 3 a-2 and 3b-2, at pages 86-90 of the hearing testimony. The Government knew exactly where the clip began, at 00:41:30. It intended to play this clip for the witness on the stand and then ask the witness questions about it.
In June, Clemens moved to prevent the Government from introducing evidence of a sworn affidavit from Laura Pettitte, stating that her husband had told her about his conversation with Clemons the day it happened. The Government fought to have her statements admitted, stating in its response of June 29, 2011 (just 2 weeks ago):
At the Hearing on February 13, 2008, defendant acknowledged that Mr. Pettitte was “a very honest fellow” and “would have no reason” to fabricate a story about defendant. Hearing at 86, 88.
Not wishing to call Mr. Pettitte out as a liar as he has with Mr. McNamee, defendant nevertheless attempted to discredit Mr. Pettitte at the Hearing by assailing both his memory and his hearing ability. fn4 Indeed, defendant’s statement to the Committee concerning Mr. Pettitte’s alleged impaired memory serves as the basis for Obstructive Act 12 in Count One of the grand jury indictment.
fn4 See, e.g., Hearing Testimony of William Roger Clemens, February 13, 2008 at page 87:Mr. CLEMENS. I believe Andy has misheard. Mr. Congressman, on his comments about myself using HGH, which never happened. . . . My problem with what Andy says, and why I think he misremembers, is that if Andy Pettitte knew that I had used HGH, or I had told Andy Pettitte that I had used HGH, before he would use the HGH, what have you, he would have come to me and asked me about it. That is how close our relationship was. And then when he did use it, I am sure he would have told me that he used it. (Emphasis added.)
The Government attached Mrs. Pettitte's affidavit and went on for several pages as to why it was not inadmissible hearsay.
On July 7, 2011, just one week ago, the Court ruled Laura Pettitte's statements inadmissible as hearsay, except possibly in rebuttal should the defense during cross-examination provide a sufficient predicate for its admission. In other words, it was ruled a no-no during the Government's direct examination.
Again, the Government doesn't just get to play videos for the jury. A video clip is an exhibit to be used during a question to a witness. Who was the witness on the stand for this clip? From what I can determine, it was Phil Barnet.
Who is Phil Barnet? According to a pleading filed by his lawyer in the case (who wanted to be present in case the questions impinged on his privilege under the Speech and Debate Clause):
At the time of the events alleged in the Indictment, which encompass the period 2005-08, Mr. Barnett served first as Minority Staff Director and Chief Counsel to the House Committee on Government Reform (2005-06), and then as Staff Director to that same committee (2007-08), the name of which changed in January 2007 to the House Committee on Oversight and Government Reform.
...We do anticipate that Mr. Barnett will be questioned by the prosecution about matters that are Speech or Debate protected that are relevant to its case in chief. Mr. Barnett, in keeping with the position taken by the Committee itself, intends in general not to assert the privilege with respect to (i) matters relating to formal, public Committee investigatory activities concerning steroid use in Major League Baseball that are relevant to the prosecution’s case in chief, and (ii) questioning by the defense on cross-examination that is within the subject matter of the direct examination. See also Fed. R. Evid. 611(b). If Mr. Barnett is questioned about other matters that are Speech or Debate protected or otherwise privileged (including cross-examination questioning that goes beyond the subject matter of the direct examination), counsel for Mr. Barnett should be permitted to object and present argument as appropriate.
In its trial memorandum, the Government stated:
5The government intends to call a former senior staff member of the House Committee on Oversight and Government Reform. This witness will provide testimony on, among other things, the materiality of defendant’s sworn statements to the Committee.
In connection with the hearing on April 21, 2011, the Court has addressed the limitations imposed by the Speech or Debate Clause. We also expect that House Counsel will be present for the staff member’s examination to address any Speech or Debate issues that may arise at trial.
So the Government prepared the clip, intending to play it for witness Barnet, and then ask him questions, including whether a particular statement by Clemons was material to the Committee's investigation, an essential element of some of the charges.
The Government went to great pains to make separate clips of each statement it intended to ask the witness about. Each one is designated by a start time and accompanied by the transcript pages for that clip.
After the clip at issue that caused the mistrial, the Government planned to show video clips (accompanied by transcripts to aid the jury) of:
- 3a-3. Transcript of Video Clip (pp 95-96)
- 3b-3. Video Clip of Hearing - The Mitchell Report - Day 2; Feb. 13, 2008 at 01:12:26
- 3a-4. Transcript of Video Clip (p. 96)
- 3b-4. Video Clip of Hearing - The Mitchell Report - Day 2; Feb. 13, 2008 at 01:13:11
- 3a-5. Transcript of Video Clip (p. 98)
- 3b-5. Video Clip of Hearing - The Mitchell Report - Day 2; Feb. 13, 2008 at 01:20:18
- 3a-6. Transcript of Video Clip (pp. 122-23)
- 3b-6. Video Clip of Hearing - The Mitchell Report - Day 2; Feb. 13, 2008 (Disk 2) at 00:03:20
- 3a-7. Transcript of Video Clip (p. 20)
- 3b-7. Video Clip of Hearing - The Mitchell Report - Day 2; Feb. 13, 2008 at 00:29:33
The exhibit list, the trial memorandum, and the objection to Clemens Motion in Limine regarding Laura Pettitte were all signed by AUSA's Steven Durham and Daniel Butler. Steven Durham appears to be the prosecutor questioning witness Phil Barnet and showing the videos.
Durham and Butler stated in their filing of exhibits that the exhibits had been turned over to the defense. It's inconceivable that a prosecutor would not have reviewed the exhibits he was turning over to the defense, and realized then the Laura Pettitte statements were still in it. Or that he wouldn't have planned his direct examination around the starting and stopping points of the transcripts and videos. He would watch the clip and then prepare the questions he intended to ask about it.
When the Judge said a first year law student would not have made this kind of mistake, I wonder whether his next thought (unstated) wasn't "And you are no first year law student." Meaning, given the lengths to which the Government fought to have Laura Pettitte's statements admitted, once the Judge ruled it wouldn't be coming in, any prosecutor would have redesigned his direct examination for the witness and deleted it. And then planned his new direct around the correct video, without the inadmissible parts.
No one leaves that task to a tech person or paralegal without making specific instructions, like "start the clip at 00:41:30 but end it at XXXXXX.." Or forgets to watch it the night before when reviewing his planned testimony. These aren't first year law students, these are seasoned professionals in DOJ's Fraud & Public Corruption Section.
The Prosecution told the Judge yesterday it was an inadvertent mistake. Given the litigation over the issue, and the court's adverse ruling only a week ago stating Laura Pettitte's statements were inadmissible, clearly they hadn't overlooked or forgot about it. When a Judge rules something in one of your planned exhibits inadmissible, you don't just shuttle it to a paralegal or tech person to delete, without checking their work afterward. And as a lawyer, you don't play a tape to a witness you haven't watched yourself to make sure it's the right clip, especially in a high-profile case like this.
The only question I have is why the defense didn't catch it immediately if they were provided exhibits in advance, as the Government claimed. When the tape played at court, Rusty Hardin didn't object at first. It was the Judge who ordered the stopping of the video and called counsel to bench. In other words, the Judge objected on his own motion. Only when they got up to the bench and started discussing it, did Rusty Hardin ask for a mistrial. So did they not review the Government exhibits (video and transcript) when preparing their cross-examination of the witness, or was the exhibit they were given different than the one played in court by the Government? I doubt they just "missed" it. They had fought hard to keep it out.
So this is a bit of a head-scratcher. I'm ruling out an inadvertent mistake by paralegals, clerical and technical staff. It was either felony stupid on the part of seasoned prosecutors or a fast ball to get Laura Pettitte's statements before the jury despite the court's order.
If the Government doesn't come up with a satisfactory answer, I doubt they will get the chance to retry Clemens.
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