Edwards Verdict Shows Clemens Need Not Fear Taint Of Reputation

June 4, 2012

Bloomberg on June 3, 2012 released the following:

“By David Glovin

Jurors tend to look past a criminal defendant’s reputation, no matter how odious, to render verdicts based on fact and law, lawyers said after former presidential candidate John Edwards won an acquittal and mistrial last week.

Federal jurors in Greensboro, North Carolina, on May 31 acquitted Edwards of one charge of using illegal campaign contributions to hide an extramarital affair and couldn’t decide about five other counts. They did so after hearing evidence that Edwards cheated on his dying wife and lied to the public about fathering a child with his paramour.

The verdict sends an encouraging signal to Roger Clemens, the former Major League Baseball pitcher now on trial in Washington for lying to Congress about his use of steroids, said Douglas Godfrey, a professor who teaches criminal law at Chicago-Kent College of Law.

“While we would all acknowledge that Edwards and Clemens are not nice guys and they behaved in very bad ways, that’s not the same as violating the law,” Godfrey said in a telephone interview. “Just because you’re an arrogant SOB or philanderer, that’s not the same as committing a crime.”

Edwards’s acquittal and mistrial came 11 months after a Florida jury acquitted Casey Anthony, an Orlando mother accused of killing her 2-year-old daughter, and 22 years after a New York City jury rendered a not guilty verdict in the racketeering case of Imelda Marcos, the former Philippines first lady ridiculed for owning more than 1,000 pair of shoes. In those cases and others, public opinion had turned so harshly against the defendants that a conviction seemed almost an afterthought.

Then the jury weighed in.

Jury Speaks

“It’s a great affirmation of our jury system that people like Casey Anthony and John Edwards, who are personally unlikable and in many ways despicable, can still sit in front of a jury of 12 people and have those 12 people judge them based on the evidence,” said Marc Mukasey, a former federal prosecutor who is now in private practice at Bracewell & Giuliani LLP.

Edwards, a former Democratic U.S. senator from North Carolina and presidential contender in 2008, was accused of violating campaign finance laws by accepting almost $1 million from multimillionaire heiress Rachel “Bunny” Mellon and Fred Baron, a now-deceased trial attorney, to conceal an affair. The case marked the first time the government prosecuted someone for campaign violations when money was paid to a third party.

Jurors deliberated for nine days before reaching their partial verdict. They couldn’t agree on counts that included a claim that Edwards conspired to protect his candidacy by secretly soliciting and accepting the funds and causing his campaign to file false reports with the Federal Election Commission.

He’s unlikely to be retried, a person familiar with the matter said last week.

Adultery, Arrogance

Except for the defendants’ notoriety — Edwards for adultery and Clemens for arrogance — the two cases have few similarities, said Stefan Passantino, who heads the political law team at McKenna Long & Aldridge in Washington. Lying to Congress, which Clemens is accused of, is a far more established crime than the conduct for which Edwards was on trial, he said.

Still, both defendants have had to confront the prospect that jurors would convict because of their reputations. The Edwards jury didn’t, in part because defense lawyers shifted the focus to ex-campaign aide Andrew Young, who acted as a go- between on transactions involving Mellon and Baron and used some of their money to build his own $1.5 million home.

Defense attorney Abbe Lowell also addressed the character issue head-on.

‘Moral Wrongs’

“John Edwards may have committed many moral wrongs but he did not commit a legal one,” Lowell told jurors during his closing argument. “He was a bad husband and lied to his family but there is not a remote chance that he violated campaign finance laws or committed a felony.”

Marcellus McRae, a former federal prosecutor who is now at Gibson Dunn & Crutcher LLP in Los Angeles, said jurors were attentive enough to the case’s nuances to see past Edwards’s reputation.

“Perceptions about personalities don’t govern verdicts,” he said. “In Edwards, personality didn’t rule.”

While Clemens is a seven-time Cy Young Award winner as the best pitcher in his league, he also ranks 14th in Major League Baseball for hitting 159 batters with pitches during his career.

Hurled Bat

Lawyers for Clemens, whose reputation for abrasiveness grew after he hurled a bat at an opposing player and because of his performance before Congress, have been taking a page from Edwards’s book. The ex-pitcher’s defense has been focused on tearing down the credibility of the government’s only eyewitness, Brian McNamee, Clemens’s former trainer.

McNamee testified he gave Clemens injections of steroids and human-growth hormone.

Clemens’s lawyer, Rusty Hardin, got McNamee to admit he’d lied to federal investigators and accused him of alcohol abuse and engaging in a fraudulent scheme to obtain diet pills.

“The facts are very different, the personalities are different,” Robert Mintz, a former federal prosecutor who’s now a partner with McCarter & English LLP in Newark, New Jersey, said of the Clemens and Edwards cases.

‘Positive Message’

“But if there’s any positive message that Clemens can draw out of the Edwards verdict, it’s that jurors will look beyond whatever antipathy they may feel regarding their personal conduct and do their best to make a decision based solely on the facts and law presented to them at the trial,” Mintz said in a telephone interview.

Jacob Frenkel, a former Securities and Exchange Commission lawyer who is now with Shulman Rogers Gandal Pordy & Ecker PA in Potomac, Maryland, said it’s proven lying, and not reputation, that puts many celebrity defendants behind bars. He pointed to Martha Stewart, who was sentenced to six months in prison in 2004 for obstructing justice by lying to prosecutors, and baseball player Barry Bonds, the career home-run record-holder who was convicted last year of obstructing justice for deceiving a grand jury.

Clemens is accused of obstructing justice and perjury.

“It is the acts of lying or obstruction that often are the downfall,” Frankel said in a telephone interview.

It’s not only Clemens who may take comfort in the Edwards verdict, said Michael Kendall, a partner at McDermott Will & Emery in Boston and a former federal prosecutor. In New York, Rajat Gupta, who was once a director of Goldman Sachs Group Inc. (GS) and who ran McKinsey & Co. from 1994 to 2003, is defending against charges that he leaked inside information to hedge fund co-founder Raj Rajaratnam.

Public Hostility

If Edwards could win an acquittal, so might Gupta, even amid public hostility to bankers and Wall Street in the wake of the 2007 financial crisis, he said.

“There are a thousand ways to derail a prosecution,” Kendall said in a telephone interview. “There’s an incredible common sense in collective good judgment in the jury system.”

The Edwards case is U.S. v. Edwards, 11-cr-161, U.S. District Court, Middle District of North Carolina (Greensboro). The Clemens case is U.S. v. Clemens, 10-cr-223, U.S. District Court, District of Columbia (Washington). The Gupta case is U.S. v. Gupta, 11-cr-907, U.S. District Court, Southern District of New York (Manhattan).”

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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.


As Justice Department investigates shooting of Florida teen, doubts arise about federal charges

March 21, 2012

The Washington Post on March 20, 2012 released the following:

“By Sari Horwitz,

The decision by the Justice Department and the FBI to open an investigation into the slaying of an unarmed black teenager in Florida has spurred internal debate at the agency over whether the federal government could bring criminal charges in the case, which has sparked widespread protest.

Lawyers at the department said Tuesday that while the investigation into the shooting of 17-year-old Trayvon Martin would go forward, it would be difficult to prosecute the case under federal law. Civil rights law protects against “hate crimes” or actions by police officers, but Martin’s shooting may not have either of those elements, two officials said. They spoke on the condition of anonymity because the probe is still under federal review.

Martin was shot and killed Feb. 26 by a neighborhood watch volunteer, George Zimmerman, who told police he was acting in self-defense. Zimmerman, 28, had called police from his car after he saw Martin walking in a gated community in Sanford, Fla.

According to the 911 tapes, Zimmerman told the dispatcher, “this guy looks like he’s up to no good or he’s on drugs or something . . . they always get away.” The dispatcher told Zimmerman not to follow, saying an officer was on the way. Minutes later, Martin was shot in the chest.

No charges have been brought against Zimmerman. Along with the Justice investigation, a local grand jury will consider evidence in the case.

Zimmerman’s family described him as “a Spanish-speaking minority,” and his father released a statement to the Orlando Sentinel saying his son did not target Martin because he was black.

Martin’s mother, Sybrina Fulton, said Monday, “I don’t understand why this man has not been arrested . . . let a judge and jury decide if he’s guilty.”

Lawyer Benjamin Crump, who represents Martin’s parents, said at a news conference in Florida on Tuesday that the teenager was on a cellphone with his girlfriend in Miami when he told her he was being followed, according to the Associated Press. She said Martin told her that he was trying to get away.

Crump, who did not release the name of Martin’s girlfriend because of privacy concerns, said she heard a scuffle and an altercation before the call was cut off.

Martin had not been using drugs or alcohol and would have had no reason to confront Zimmerman, Crump said in an interview. He had been watching basketball at his father’s girlfriend’s house when he went to a nearby 7-Eleven store for a snack, Crump said.

A bag of Skittles and a can of iced tea were on his body when police arrived.

Rallies have been held across Florida, with students calling for Zimmerman’s arrest, and the Rev. Al Sharpton will hold a national rally Thursday in Sanford.

Thomas E. Perez, assistant attorney general for civil rights, met in Washington on Tuesday with Sanford Mayor Jeff Triplett and Rep. Corrine Brown (D-Fla). Brown urged Perez to prosecute the case as a hate crime.

Stephen A. Saltzburg, a professor at George Washington University Law School, called the case “a difficult one for the Justice Department.”

“This may be somebody who is racially biased, but from the 911 calls, it looks as though, however misguided this guy was, he thought that Trayvon was involved in some kind of suspicious activity,” Saltzburg said. “Race may play a role, but I just think it will be hard to bring this as a federal hate crime, given the limited reach of federal hate-crimes law.”

Justice Department spokeswoman Xochitl Hinojosa issued a statement late Monday saying that in civil rights crimes, the government “must prove beyond a reasonable doubt that a person acted intentionally and with the specific intent to do something which law forbids — the highest level of intent in criminal law.”

White House spokesman Jay Carney offered condolences to the Martin family but said the White House was “not going to wade into a local law enforcement matter.””

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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 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 C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Justice Department, FBI to probe Florida teen’s death

March 20, 2012

CNN on March 20, 2012 released the following:

“By the CNN Wire Staff

Sanford, Florida (CNN) — Federal prosecutors and the FBI will investigate the killing of an unarmed African-American teen amid claims of racial profiling and widespread calls for charges against the Hispanic neighborhood watch volunteer who has acknowledged shooting him.

“The department will conduct a thorough and independent review of all of the evidence and take appropriate action at the conclusion of the investigation,” Justice Department spokeswoman Xochitl Hinojosa said Monday in a written statement. “The department also is providing assistance to and cooperating with the state officials in their investigation into the incident.”

Trayvon Martin, 17, was shot and killed February 26 while walking to his father’s fiancee’s house in Sanford after a trip to a nearby convenience store.

His father said Monday the family believes race was a factor in their son’s death, fueling a huge surge in the public outcry over the incident in the racially mixed community 16 miles northeast of Orlando.

“I think that’s an issue that Mr. Zimmerman himself considers as someone suspicious — a black kid with a hoodie on, jeans, tennis shoes,” Martin said on CNN’s “Anderson Cooper 360.” “Thousands of people wear that outfit every day, so what was so suspicious about Trayvon that Zimmerman felt as though he had to confront him?”

The case was one of the most discussed topics Tuesday morning on the social networking service Twitter, much of it dedicated to an online petition posted by Trayvon’s parents last month calling on Florida authorities to charge Zimmerman.

As of Tuesday morning, more than 534,000 people had signed the petition at Change.org, making it the third-largest petition campaign ever at the site, according to spokeswoman Megan Lubin. More than 10,000 people an hour were signing the petition early Tuesday.

Zimmerman, 28, has claimed self-defense in the shooting, according to police, who say they have not charged him because they have no evidence to refute his story.

But demonstrators who have turned out in recent days to protest police handling of the case have mocked Zimmerman’s claim, carrying bags of Skittles like the one Trayvon had bought shortly before his death.

CNN has made numerous attempts to contact Zimmerman, who is Hispanic, but have been unsuccessful. In a statement to the Orlando Sentinel, Zimmerman’s father says his son grew up in a multiracial family and has moved out of his home after receiving death threats.

Florida’s deadly force law allows people to meet “force with force” if they believe they or someone else is in danger of being seriously harmed by an assailant, but exactly what happened in the moments leading up to Trayvon’s death remain unclear.

Zimmerman’s father released a statement to the Orlando Sentinel last week in which he said his son never followed or confronted Trayvon. But on Monday, police released 911 recordings in which Zimmerman says he is, in fact, following the boy.

“Something’s wrong with him. Yep. He’s coming to check me out,” Zimmerman told a police dispatcher. “He’s got something in his hands. I don’t know what his deal is. Send officers over here.”

The teen started to run, Zimmerman reported. When he said he was following, the dispatcher told him, “We don’t need you to do that.”

A few minutes later, someone who lives near the scene of the shooting called 911 to report an altercation. In the background, someone can be heard screaming for help, but the caller said she was too afraid to go outside and see what was going on.

Trayvon’s father said he believed the pleas for help were his son’s last words.

“It’s heart-wrenching, because those actually were my son’s last words,” he said. “And to hear his last words being cries of help, is devastating. It tears me apart as a father.”

On Monday afternoon, White House spokesman Jay Carney said the FBI was monitoring the case but that the White House was not going to “wade into a local law enforcement matter.”

Hours later, the Justice Department announced its investigation. It was unclear what prompted the change.

A handful of student protesters and a law professor from Florida A&M University met Monday with a representative of the Seminole County state attorney’s office and were told the local investigation will take several weeks, according to Jasmine Rand, the FAMU professor.

Assistant State Attorney Pat Whitaker told the students that the “investigation of the Sanford police needs to be greatly supplemented,” according to Reed.

The state attorney’s office also said a voice analysis would be conducted on 911 calls from the night of the shooting to determine who was yelling for help, students said.

Florida Gov. Rick Scott weighed in on Monday, noting that the case has “caused significant concern within the Sanford community and the state” and asking the Florida Department of Law Enforcement to provide “any assistance necessary” to local investigators.

The Congressional Black Caucus and the Congressional Hispanic Caucus have also called for a federal investigation, with the Black Caucus saying Sanford police showed “blatant disregard for justice” in the case.

In announcing the federal probe, Hinojosa cautioned that bringing a civil rights case requires that the government prove “that a person acted intentionally and with the specific intent to do something which the law forbids — the highest level of intent in criminal law.”

It was unclear when federal officials would announce a decision in the case.

The Justice Department said part of its effort will be to address tensions provoked by the case in the racially mixed community, whose population was 57% white and 30% African-American, according to 2010 U.S. Census Bureau figures. Hispanics, which can be of any race, made up 20% of the population, according to the data.”

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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

————————————————————–

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 C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.