Roger Clemens trial: Jurors come with questions, and get to ask them

May 15, 2012

The Washington Post on May 14, 2012 released the following:

“By Del Quentin Wilber and Ann E. Marimow,

Jurors wondered whether key evidence might have been planted and if a former drug dealer regretted having “destroyed people’s lives.” And at least one wanted more testimony about a heated discussion that wasn’t fully explored in court.

Those are the types of questions that might pop into the head of a juror during any criminal trial. And that is usually where those questions remain, locked away until jurors are finally permitted to discuss the case during their deliberations.

But in the perjury prosecution of Roger Clemens, jurors have been asking those very questions in court — providing a rare and real-time window into the thought process of the 15 District residents sitting in judgment of one of baseball’s biggest legends. The questions, reviewed by the presiding federal judge before being posed to witnesses, have revealed that at least some jurors seem skeptical of the prosecution and want to know more about off-limits testimony.

The federal judge, Reggie B. Walton, has long advocated engaging jurors more directly in trials by letting them ask questions, and he has told fellow judges that the practice ensures jurors are attentive and properly understand key testimony.

Walton, who has lectured on the topic at the National Judicial College, permitted such questions during another big trial — that of I. Lewis “Scooter” Libby in 2007, a decision that was later hailed as a “terrific idea” by the case’s initially doubtful prosecutor.

In federal court, judges have the authority to allow jurors to query witnesses, though the practice remains uncommon. In recent years, the procedure has gained traction in academic circles and has been occurring with more frequency in state courts, legal experts say.

“The old view of jurors is that they are blank slates,” said Shari Seidman Diamond, a professor at the Northwestern University School of Law. “But they are decision-makers, trying to figure out what is going on. They are trying things out. Questions help them process. This has all kinds of benefits.”

In the Clemens trial, the questioning has worked this way:

After each witness has finished testifying, Walton asks the jury if it has any questions. The 12 jurors and three alternates — one juror has already been excused, for sleeping — represent a broad cross-section of District residents. Among them are a Giant food clerk, a retired political science professor, a former ANC commissioner, a WMATA security officer and a Treasury Department official.

Sometimes jurors submit questions on note cards, sometimes they don’t. Walton then discusses the questions with prosecutors and defense lawyers during a private discussion at the bench, where either side can object to the query. Walton does not pose a question if he feels it is not legally permissible.

This account is based on transcripts of those private bench conferences:

So far, the jurors’ questions indicate that some seem uneasy with aspects of the government’s case. After federal agent Jeff Novitzky testified two weeks ago, for example, a juror asked about the authenticity of evidence that Clemens’s former strength coach, Brian McNamee, turned over to authorities in 2008. The strength coach claims to have injected Clemens with steroids and human growth hormone (HGH) and saved syringes and cotton balls in a crumpled beer can. Prosecutors say scientists have linked Clemens’s DNA and steroids to one syringe found in the can.

“Could this evidence be planted evidence?” one juror wanted to know.

“McNamee had access to [Clemens’s] blood, plus using cotton balls with tissues to wipe it clean, correct?” the juror continued.

“He also had access to needles, is that correct?”

“Is this evidence really conclusive?”

After reading the questions to prosecutors and defense lawyers, Walton said “that’s for them to decide,” meaning the jurors.

“I am not sure any of those questions are appropriate for this particular witness,” said Assistant U.S. Attorney Steven Durham.

Walton sided with Durham and did not ask the questions.

Jurors also wanted to hear more from Andy Pettitte, a former teammate and close friend of Clemens’s who had been considered a key prosecution witness. The left-handed pitcher, who is making a comeback this season after having retired, told jurors that Clemens confided in him during a workout in 1999 or 2000 that he had taken HGH. But on cross-examination, he agreed with a defense attorney that there was a “fifty-fifty” chance he had misheard what Clemens had told him.

During questioning by a prosecutor, Pettitte briefly mentioned that he approached McNamee after Clemens’s revelation and the strength coach got upset. A prosecutor quickly stopped Pettitte from going any further because such testimony would violate hearsay rules.

A juror clearly picked up on the exchange and wanted to know, “When you talked with McNamee about HGH, he got upset. Can you speak about that incident?”

Walton did not ask the question, telling attorneys that he did not “understand the rationale how somehow McNamee’s reaction to what Pettitte tells him helps the jury.”

McNamee took the stand on Monday, and jurors could get the chance to ask the star prosecution witness questions by as early as Tuesday or Wednesday.

Last week, jurors sought clarity from the trial’s most colorful witness, Kirk Radomski, a former steroid supplier who testified in a thick Bronx accent that he sold the drugs to many ballplayers and to McNamee. Jurors wanted to know about a torn address label, among other matters.

In 2008, three years after federal agents raided his home, Radomski found several mailing slips and photographs in an envelope under a television in his bedroom that had been missed in the original search. One of those slips, which was torn and did not include tracking numbers, was addressed to “B. McNamee” at Clemens’ home in the Houston area. Radomski testified that the label belonged to a package of HGH and needles that he sent to McNamee.

A juror wanted to ask Radomski a follow-up question about how he had discovered the labels. And another wanted to know if Radomski had turned over other such slips to authorities in recent years. Walton chose to pose both queries to the former dealer.

Other jurors wanted to know if it was “common for strength and conditioning coaches to deliver steroids or HGH to athletes,” whether Radomski had discussed the case with prosecutors during a recess and how he felt about having “destroyed people’s lives by your actions.”

And, finally, a juror wanted to ask Radomski if he and McNamee had ever discussed Clemens. Michael Attanasio, one of Clemens’s attorneys, told Walton that he thought he had already asked that very question.

“I thought he said no,” Walton said.

“He did.”

“That’s why questions are good,” Walton said, “because sometimes jurors don’t hear it.””

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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.


Federal Prosecutors won’t call Rielle Hunter to testify at John Edwards’ Federal Criminal Trial

May 10, 2012

Boston Herald on May 10, 2012 released the following:

“Prosecutors won’t call Rielle Hunter to testify at John Edwards trial

By Anne Blythe and Martha Quillin / McClatchy Newspapers

GREENSBORO, N.C. — Prosecutors trying John Edwards have called a full cast of witnesses over the past three weeks to talk about $400 haircuts, fancy houses, posh estates, the whirlwind details in a presidential run, back-biting, betrayal and an extramarital affair that sent a one-time political star plummeting to the depths of a criminal trial.

On Wednesday, the day before prosecutors plan to wrap up their evidence, the one witness from the Federal Elections Commission, Patricia Young, an administrator in the Public Disclosure Division, was on the witness stand for not much more than 30 minutes. But prosecutors won’t be calling the woman who set the whole, sordid matter into motion — Edwards’ former mistress, Rielle Hunter.

Prosecutors told Judge Catherine Eagles late Wednesday that they still were on schedule to wrap up their side of the case on Thursday, and Hunter, the woman with whom Edwards had an extramarital affair and a child, was not one of the witnesses they intend to call.

Legal experts said prosecutors apparently will skip Hunter because she didn’t have direct knowledge of the money involved in hiding her and they can’t be certain of what she might say on the stand.

The Edwards case could test the sweep of campaign finance law.

When the government rests, the stage will be set for the first key ruling in the trial. Defense lawyers will likely ask Eagles, who will by then have heard the best evidence against Edwards, to dismiss the case in whole or in part. It is a standard maneuver in a criminal trial, but it may have a greater chance in this case in which the applicability of the law is also at issue.

Defense lawyers have argued that the campaign laws Edwards allegedly broke don’t apply to funds spent for personal reasons, such as the hiding of a mistress. Jurors will be asked to decide not only whether the expenses provided by two wealthy supporters should have been classified as campaign expenses, but whether there was any criminal intent by Edwards in not reporting that on public disclosure forms.

Prosecutors plan to call several federal agents on Thursday, but their case could go to a jury which will have to rule on the intent of key actors in a case that weighs heavily on intent without hearing from two, and possibly three, of the people at the center of the charges.

Prosecutors called the lawyer, librarian, farm manager and grandson of Rachel “Bunny” Mellon, the Virginia philanthropist who issued $725,000 in checks to help Edwards. But Mellon, just thee months shy of her 102nd birthday, was not called to testify.

Fred Baron, the wealthy Texas lawyer, who, prosecutors contend, provided several hundred thousand more dollars toward the effort to hide a pregnant Hunter from the media, died in October 2008. No one other than Edwards’ former aide and his wife, Andrew and Cheri Young, who deposited more than two-thirds of the money in their private bank account, have offered any testimony about Baron’s intent.

And Edwards, a trial lawyer who had much success with juries when he was in the courtroom, might or might not take the stand in his defense.

As prosecutors push toward the close of their case the defense team has offered themes of its own in their cross-examination of witnesses.

They contend that that most of the money prosecutors contend was coverup money say was used to hide Edwards’ pregnant mistress from the public to keep his campaign alive went to Andrew and Cheri the Youngs, key witnesses for the prosecution.

They continue to attack the character and motives of Andrew Young, making the trial as much Edwards versus Young as the government versus Edwards.

And Wednesday, they continued to push with their theory that Young was working closely with the FBI to ensure that an indictment was issued against Edwards. The defense contends he was in close contact with agent Charles Stuber, or “Chuck” as they’ve begun to call him.

The trial so far has offered political theater, psychological drama and wrought emotion from some of the witnesses.

Also on Wednesday, Jennifer Palmieri, a former Edwards’ campaign spokeswoman and friend of Elizabeth Edwards, became emotional while describing her relationship with the former Democratic presidential hopeful’s cancer-stricken wife and her last days.

“She was not able to speak at this stage,” said Palmieri, who now works for the Obama administration.

Shortly before she died, Elizabeth Edwards told Palmieri that she did not want to die alone, that when the time came, “there would not be a man around to love her.”

Palmieri said she would be there and was. So was John Edwards.

As Palmieri testified, Edwards, rubbed his eyes and pressed his forehead against his hand.

Palmieri was under cross-examination by defense lawyer Abbe Lowell after testifying for prosecutors about a rancorous October 2007 Iowa hotel meeting in which Elizabeth Edwards was angry at Baron and his wife Lisa Blue.

The Texas couple had taken Hunter on a shopping trip in California and Elizabeth Edwards was livid that they were continuing to stay in touch with Hunter. keep up with a woman with whom her husband had an extramarital affair. Edwards had told his wife a while back the affair was over and Elizabeth Edwards could not fathom why Baron and Blue were still in communication with her.

“Lisa kept saying, ’You’ve got to hold your friends close and your enemies even closer,’” Palmieri testified.

Palmieri, who has been involved with politics her entire career, offered testimony that played to contentions by prosecutors that Edwards built his campaign on a family-man image and that news of an affair could damage his chances. Therefore, the government argues, efforts to shield his family-man image were in fact campaign expenses.

Palmieri remembered the first National Enquirer story that mentioned the possibility of Edwards being involved in an extramarital affair.

It was months before the publication broke the news about Hunter being pregnant.

Palmieri talked about the efforts to keep the affair story from “jumping to the mainstream media.”

As she tried to help tamp down the story of the affair, Palmieri turned to Edwards and said: “If it’s true, don’t think you’re going to survive this.”

When pushed by prosecutor David Harbach about why she told Edwards that, Palmieri said: “A big part of his appeal was his family and his relationship with Elizabeth.”

Palmieri took the stand after speechwriter Wendy Button finished her testimony.

Button testified on Tuesday that Edwards told her in 2009 that he was aware all along that Baron had provided support to Hunter.

But on cross-examination, defense lawyer Abbe Lowell pointed out that Edwards had not specifically elaborated on what that meant.

Edwards and Button at the time were talking about Quinn, the daughter he had with Hunter. He was upset and very emotional, Button said, that he had lied on an ABC interview nearly 11 months earlier that he was not the father.

Button was helping him prepare a statement that would acknowledge his lie and perhaps clear up other lingering issues.

That statement went through at least 13 renditions, was vetted by lawyers and others, and eventually was not delivered.”

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

Federal Crimes – Federal Indictment

————————————————————–

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.