An aggressive, all-out defense

June 6, 2012

ESPN on June 6, 2012 released the following:

“By Lester Munson

WASHINGTON — It would be easy for Roger Clemens and his legal team to poke a few holes in the evidence against him and then argue to the jury that federal prosecutors have failed to meet the Constitution’s requirement of proof “beyond a reasonable doubt.” If they managed to convince one or two jurors, they could hope for a deadlock in the jury’s deliberations and a mistrial and a technical victory.

That is not what they are doing. As they presented their 14th witness on Tuesday, they were in the middle of a massive effort that seeks nothing less than the total destruction of the government’s effort and a not-guilty-on-all-counts verdict that will vindicate Clemens and begin to restore his legacy as one of baseball’s greatest pitchers.

It’s a highly unusual strategy. There was enough doubt about the government’s evidence after the four-day cross-examination of the prosecutors’ star witness, Brian McNamee, that many defense lawyers would have concluded their efforts and relied on the jury to find the necessary “reasonable doubt.” McNamee confessed to numerous lies, mistakes and exaggerations, the kinds of admissions that most defense lawyers agree are enough to persuade one or more dubious jurors to hold out for a not guilty verdict.

But lead Clemens attorney Rusty Hardin’s cross-examination of McNamee was only the beginning, not the end, of the defense effort.

Relying on a high school teammate, retired ballplayers, expert witnesses, a housekeeper, two masseuses, a broadcaster, and even an FBI agent, Hardin is offering answers to every element of the government’s charges against Clemens. And there is more to come. Hardin says he’ll finish his presentation of as many as 21 witnesses on Friday, and when he is done, it promises be an impressive accumulation of evidence.

Here’s a look at how the Clemens lawyers have responded so far to the government’s charges that Clemens lied to Congress when he denied that he had ever used steroids or HGH.

At the center of the government’s case is a trove of syringes, cotton balls, vials, and ampoules that McNamee claims he used to inject Clemens with performance-enhancing drugs. McNamee gathered the physical evidence after injecting Clemens in August 2001, stored it in a beer can and a FedEx box in his house, and finally turned it in to the government in January 2008. The prosecutors used an FBI expert and a forensic scientist from a private lab to show that Clemens’ DNA was present on some of the materials.

On Tuesday afternoon, Bruce Goldberger, a Ph.D. forensic toxicologist who is the founder and director of a lab at the University of Florida, explained to the jury that the physical evidence did not meet the standards that apply to the collection and preservation of physical evidence.

Goldberger’s testimony came after a vigorous and extended argument from Asst. U.S. Attorney Daniel Butler, who insisted to U.S. District Judge Reggie Walton that Goldberger was not qualified to offer expertise on the collection of evidence and was qualified only to examine substances (blood, urine, drugs) in his laboratory. Clearly impressed with Goldberger and his knowledge of evidence collection, Walton allowed Hardin to present the expert to the jury.

Commingling the cotton balls, the syringes, and the other materials in what may have been a damp beer can, Goldberger said, leads to the possibility of “cross-contamination” and precludes the connection of any of the materials to anyone.

Speaking calmly and persuasively in what was the most powerful testimony in the entire trial, Goldberger told the jury that “the possibility of contamination leads to unreliable laboratory conclusions” and “there must be certainty beyond a reasonable doubt before we can make the scientific connection” between the material and an individual.

In the course of Goldberger’s testimony, the language of the trial was transformed with words like “manipulation” and “fabrication” and “garbage” suddenly being used in connection with materials the prosecutors had described as “medical waste.”

Goldberger told the jury that the material was doubly suspicious because it had been “collected and preserved by the accuser.” Hardin was soon referring to McNamee as the “accuser-collector.”

Butler’s cross-examination of Goldberger did not help as he quarreled with Goldberger about his qualifications and picked at him with questions about the “back story” of a piece of evidence. Butler succeeded only in allowing Hardin to come back with a question that prompted Goldberger to conclude that the physical evidence was the worst Goldberger had seen in 30 years of working with trial evidence.

On another central issue in the trial, Hardin has managed to suggest something that seemed totally unlikely ballplayers’ use injections of Vitamin B12 the way most of us use aspirin or Tylenol. Clemens, in what once seemed to be a weak response to allegations that he had been injected with steroids, claimed that the injections were B12.

Former pitcher Mike Boddicker told the jury that B12 injections were common during his 13 years in the big leagues and that he once walked into the Boston Red Sox training room and was surprised to see Clemens with his pants down being injected in the buttocks with B12. Boddicker, another charming and engaging witness for the defense, told the jury that he could see “B12” on the vial on the training table.

Like the other MLB players that Hardin and Clemens have presented, Boddicker seemed to capture the attention of the jury with his stories that he survived in the big leagues for 13 years with an 84-mph fastball and that he was once traded from the Baltimore Orioles to the Red Sox for Brady Anderson and Curt Schilling.

Prosecutor Steven Durham tried to cross-examine Boddicker by raising the well-known, unwritten law of an MLB clubhouse that what happens in the clubhouse stays in the clubhouse. It was supposed to show that Boddicker would skew his testimony to help Clemens. But, instead, it opened the door for Hardin to return with Boddicker’s report that Clemens would frequently leave the clubhouse in uniform to visit children in Boston hospitals and that he insisted that his teammates tell no one, especially media, about it.

The enormous Clemens-Hardin effort clearly has the prosecutors scrambling. In his attempt to prepare for Goldberger’s testimony, Butler was on the phone with Goldberger on Tuesday morning, only hours before Goldberger appeared before the jury. To prepare for Boddicker’s testimony, the prosecutors sent an FBI agent to interview him on Sunday before his Tuesday appearance.

The defense strategy is proactive, and it is aggressive. It fits what we know of the Clemens way of doing things. It’s working now, but as another great ballplayer said, “It ain’t over ’til it’s over.””

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Judge Declares Law Governing Warrantless Cellphone Tracking Unconstitutional

November 17, 2011

The Wall Street Journal on November 16, 2011 released the following:

“By Julia Angwin

In a succinct one-page ruling, U.S. District Court Judge Lynn N. Hughes of the Southern District of Texas declared that the law authorizing the government to obtain cellphone records without a search warrant was unconstitutional.

“The records would show the date, time, called number, and location of the telephone when the call was made,” Judge Hughes wrote in the decision, dated Nov. 11. “These data are constitutionally protected from this intrusion.”

Judge Hughes’ decision comes as the U.S. government is facing increasing judicial challenges to its practice of obtaining information about the location of individuals without a search warrant. Last week, the Supreme Court heard oral arguments in a case where the government placed a GPS tracking device under a vehicle and monitored the driver’s movements for a month without a search warrant.

During the argument, Chief Justice John Roberts said to Michael Dreeben, deputy solicitor general of the Justice Department: “If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” The Justice Department argues that people have no expectation of privacy on public roads.

Cellphone records are governed by the Electronic Communications Privacy Act, a 1986 law that permits law enforcement officers to obtain certain digital records – such as some e-mail and cellphone records – without a search warrant. A coalition of technology companies—including Google Inc., Microsoft Corp. and AT&T Corp.—is lobbying Congress to update the law to require search warrants in more digital investigations.

At the same time, judges in lower courts have been questioning the constitutionality of the law, which only requires officers to show “specific and articulable facts” the electronic records sought are “relevant and material” to an ongoing investigation. For physical searches of a person’s home, the government is required to show probable cause that a crime was committed and obtain a search warrant.

Since 2005, more than a dozen magistrate judges have written opinions denying applications for court orders to track cellphones without search warrants. The nation’s roughly 500 magistrate judges handle applications for search warrants and other types of electronic surveillance in federal courts.

Of course, some have upheld warrantless searches. Last week, U.S. District Court Judge Liam O’Grady ruled that the government could obtain data from the Twitter accounts of three WikiLeaks without a search warrant.

Last year, Magistrate Judge Stephen Smith of U.S. District Court in the Southern District of Texas issued an opinion denying the government access to 60 days worth of information about a cellphone subscriber’s location and phone calls, without a search warrant.

Magistrate Judge Smith wrote that although cellphone tracking wasn’t envisioned by the writers of the Constitution, it had become so precise and pervasive that “for a cellphone user born in 1984, however, it is now conceivable that every movement of his adult life can be imperceptibly captured, compiled, and retrieved from a digital dossier somewhere in a computer cloud. Now as then, the Fourth Amendment remains our polestar.”

The government appealed, saying that the Fourth Amendment, which protects against unreasonable searches and seizures, does not apply because “a customer has no privacy interest in business records held by a cell phone provider, as they are not the customer’s private papers.” The government also challenged Judge Smith’s description of the accuracy of location tracking as “inaccurate or misleading,” and submitted an affidavit from cellular provider MetroPCS Wireless Inc. stating that the average coverage radius of its cellular towers was about “one or two miles.”

The district court ruling was short, but declarative. It affirmed Magistrate Judge Smith’s decision on constitutional grounds. “When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause,” Judge Hughes wrote. “The standard under the [existing law] is below that required by the Constitution.””

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Federal Judge Rejects Motions to Dismiss North Korea Leak Case Against Stephen Kim

August 26, 2011

Politico on August 26, 2011 released the following by Josh Gerstein:

“A judge in Washington has rejected defense motions to dismiss charges against a former State Department analyst charged with leaking top-secret intelligence about North Korea to Fox News.

Stephen Kim, who worked for the Energy Department but was detailed to Foggy Bottom, was charged last August with violating the Espionage Act by disclosing to James Rosen of Fox News that the U.S. believed North Korea was about to conduct a nuclear test. Kim was also charged with lying to FBI agents by denying contact with Rosen.

Kim’s lawyers, led by D.C. defense attorney Abbe Lowell, asked U.S. District Court Judge Colleen Kollar-Kotelly to dismiss the charges on a variety of grounds. One of the more interesting arguments was that the crime Kim allegedly committed amounted to treason and, according to the Constitution, could only be charged by testimony of two witnesses. Lowell also argued that transmission of classified information, as opposed to tangible documents, does not violate the Espionage Act–an argument he also offered in the defense of two pro-Israel lobbyists facing similar charges a few years ago.

However, in a 24-page opinion issued Wednesday, Kollar-Kotelly rejected all the defense motions. The judge called “compelling and eloquent” the defense arguments about the treason clause of the Constitution, but said precedent from various courts, including the Supreme Court, had established that Congress could establish similar crimes to treason without following the specific rules the Constitution sets out for treason.

Kim’s case is the fifth Espionage Act prosecution brought during the Obama administration in connection with alleged leaks of classified information to the media.”

Attached is Stephen Kim – Memorandum Opinion and Order.

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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