Will the Truth (About the Prosecutors) Come out in the Clemens Case? – Part II

by James Scanlan, Esq.

This item follows on a July 26, 2011 item styled “Will the Truth (About the Prosecutors) Come out in the Clemens Case.”

On July 29, 2011, the defense moved to preclude a second trial in the Roger Clemens obstruction of congress/false statements/perjury case. The motion persuasively argues that the prosecutors engaged in misconduct when they presented a video in which Congressman Elijah Cummings described evidence that the court had ruled could not be presented to the jury. The motion somewhat less persuasively argues that the prosecutors engaged in this conduct for the purpose of causing the defense to seek (and secure) a mistrial, which purpose the motion acknowledges is a necessary criterion for precluding a retrial.

The motion was noncommittal on the nature of the evidence the court should consider in interpreting the prosecutors’ intentions. It discusses that prosecutor intent is commonly inferred from circumstantial evidence and maintains that the objective factors support the defense’s contentions as to that intent. Motion 20-21. But the motion also indicates that after reviewing “the quantum of evidence introduced in [the government’s] memorandum of opposition,” the defense may seek an evidentiary hearing on the prosecutors’ state of mind when the government improperly presented inadmissible evidence in the first trial. Id. 19.

As suggested above, one plausible interpretation of the prosecutors’ intentions is the following:

(1) The prosecutors deliberately violated the court’s order regarding the inadmissible hearsay, while believing that they would ultimately get away with it and that the improperly presented material would influence the jury even if it should be stricken.

(2) The prosecutors did not intend to cause the defense to seek (and secure) a mistrial.

Assuming these are the facts, some prosecutor would believe they faced a dilemma. Acknowledging misconduct as to the first matter will compromise the prosecutors’ credibility as to the second matter and could subject the prosecutors to sanctions by the court, the bar, or the Department of Justice. Such acknowledgment might also disqualify the prosecutors from personally retrying the case in the event the court permits a retrial. And it will make the government look generally untrustworthy.

But if the prosecutors were to attempt to deceive the court as to the first matter, and were unsuccessful in doing so (as they are likely be), the court could be even less receptive to their arguments as to the second matter. The court might well also fault (and in some manner sanction) the government and/or the prosecutors for the additional misconduct in the effort to deceive the court.

There is no real dilemma, however, because there is no choice involved. Government attorneys must advise the court of their true intentions at to both matters. Moreover, the Department of Justice must itself ensure that the prosecutors are forthcoming as to their true intentions, and being truly forthcoming should entail the prosecutors’ providing sworn declarations concerning their thinking. But any effort to deceive the court on either matter, whether undertaken through false statements or misleading or evasive arguments, is an egregious act of prosecutorial abuse.

There is reason to believe that not every prosecutor recognizes their obligation in this regard, and I am not sure the Department of Justice itself recognizes the obligation. But it is hard to imagine that the Department would ever argue otherwise. In any case, the government’s opposition is due on August 19, 2011. As I suggested in the earlier item, it should be a revealing document regardless of whether it is forthcoming as to the prosecutors’ intentions. In the event that the defense seeks an evidentiary hearing on the prosecutors’ intentions, the matter could prove increasingly interesting.