Prosecutors’ Misconduct Is More Than Just ‘Honest Mistakes’

A federal judge in the District of Columbia recently ruled that the U.S. Department of Justice will be allowed to retry star pitcher Roger Clemens on perjury charges after a mistrial was declared earlier this summer when the prosecution made reference to inadmissible evidence in open court.

The government claimed that its violation of court orders was done inadvertently and was not an instance of intentional prosecutorial misconduct. Government examples of misconduct seem to abound these days. We recently wrote about the Lindsey Manufacturing case under the FCPA and about the Lazare Kobayaga case, a genocide case, in which it was clear that traditional discovery standards were not followed.

It is curious to us that Assistant Attorney General Lanny Breuer recently told a group of assembled state prosecutors that although prosecutors must always abide by the highest standards of conduct, “certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct. This kind of gamesmanship is unfortunate.”

Breuer described steps that the department has taken, such as providing guidance to all prosecutors on gathering and reviewing discoverable information, to ensure that DOJ attorneys abide by their ethical obligations. At the same time, he said, the department will not “shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake.”

His clear implication was that the department is now behaving ethically with few exceptions, and that defense lawyers who raise issues of misconduct, such as the withholding of potentially exculpatory documents, are merely gaming the system. We disagree with both of those ideas.

We don’t imply that all prosecutors cut corners, merely that it is a more significant problem than Breuer seems to think. We believe that defense attorneys who point out prosecutors’ errors and misconduct are both representing their clients zealously and functioning as an important check in the criminal justice system. They are not simply looking for tiny, nit-picking errors, and if they do so, judges will put defense attorneys in their place.

If the department really is doing what Breuer says and is going “farther than what the Supreme Court requires,” there should be no problem with pesky defense lawyers who ensure that this is indeed what’s happening. And if there are in fact a good many serious lapses, defense attorneys – not prosecutors’ training programs – are the last line of defense against overreaching.

Ifrah Law’s Blog Wrap-Up, June 1-20

This is the sixth of a regular series of posts that summarize and wrap up our latest thoughts that have appeared recently on Ifrah Law’s blogs.

1. Perjury, Obstruction and Barry Bonds’ Conviction

Read why we regard the Barry Bonds obstruction of justice verdict as troubling: It sets a bad precedent for the grand jury system and allows prosecutors to unfairly pin an obstruction of justice charge on a witness.

Read the full post here on the Crime in the Suites blog.

2. FTC Says These ‘Free’ Offers Were Anything But Free

In yet another salvo aimed at online marketers, the FTC goes after a Canadian company in the latest federal action targeting companies involved in what is known as the upsell industry. Our post looks at how the FTC wants ads to be worded.

Read the full post here on the FTC Beat blog.

3. Disqualification of AUSA in Scruggs Case Is Message to Prosecutors

In this case, the government may have imprisoned an innocent defendant for 14 months. The only remedy that took effect was the removal of a particular prosecutor. We wonder: Was that really enough?

Read the full post here on the Crime in the Suites blog.

4. FTC Tries to Stay One Step Ahead of Internet Fraud

In this interesting case of “location fraud,” the FTC calls out an Internet seller who allegedly misled British purchasers by claiming to be based in the U.K. and therefore supposedly subject to stringent U.K. consumer protection rules.

Read the full post here on the FTC Beat blog.

5. Online Poker Finds New Supporter on the Hill

An outspoken GOP conservative House member is also a poker player – and he has pledged to support legalization and to move it through a House committee.

Read the full post here on the Crime in the Suites blog.

6. Good-Faith Rule Applies to Document Destruction

A court rejects charges that in a civil case, DuPont was guilty of “spoliation,” or the intentional destruction of evidence. The court says the proper test for document destruction is one of reasonableness and good faith in the circumstances, and DuPont didn’t act in bad faith.

Read the full post here on the Crime in the Suites blog.

Perjury, Obstruction, and Barry Bonds’ Conviction

Last month, an article in the National Law Journal asked a question that has been on the minds of many: “Did Barry Bonds really obstruct justice?”

In April a jury convicted baseball legend Barry Bonds on one count of obstruction of justice based on the testimony he provided before a federal grand jury investigating the use of illegal steroids in professional sports. The jury, however, could not reach a unanimous verdict on three other counts of perjury alleging that Bonds made false statements when testifying before the grand jury.

The inconsistency of the jury’s verdicts is somewhat astounding given that obstruction of justice means providing intentionally evasive, false, or misleading testimony. As the National Law Journal reported, it is not unusual for a defendant to be charged with both perjury and obstruction of justice in the same indictment. However, the real question here is: If the jury could not find unanimously that Bonds had made false statements to the grand jury, how did it convict him on an obstruction count that requires it to find, among other things, that Bonds knowingly made false statements?

Bonds’ obstruction of justice conviction was predicated on a non-responsive answer that he provided during his grand jury testimony, referred to as “Statement C.” Statement C was provided in response to the following question posed by the prosecutor:

Q: Did Greg ever give you anything that required a syringe to inject yourself with?

Bonds answered as follows:

A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t—we don’t sit around and talk baseball, because he knows I don’t want—don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends, you come around talking about baseball, you go on. I don’t talk about his business. You know what I mean?

After all the hype about Bonds lying to the grand jury about his alleged steroid use, his conviction was ultimately based on a statement that had nothing to do with steroid use at all. Simply put, Bonds is now a convicted felon all because he said that he was a celebrity child who did not like to get involved in anyone else’s business. How exactly could the above statements be said to have impeded the grand jury investigation?

Five minutes after asking Bonds the above question, the prosecutor had the following exchange with Bonds:

Q: So no one else other than perhaps the team doctor and your personal physician ever injected anything in to you or taken anything out.
A: Well, there’s other doctors from surgeries. I can answer that question, if you’re getting technical like that. Sure, there are other people that have stuck needles in me and have drawn out – - I’ve had a bunch of surgeries, yes.
Q: So – -
A: So sorry.

Thus, even though Bonds answered “no” to the original question a mere five minutes later, the jury, after being deadlocked on whether Bonds had lied, was convinced he had been evasive in his testimony. Apparently, the jury seemed to forget that the government had to prove that Bonds’ statement was material because it had a natural tendency to influence the decision of the grand jury. Given that Bonds fully answered the prosecutor’s original question, how could the jury find his statement to have hindered the grand jury investigation, especially if the jury could not agree that the very same statement was false?

The verdict in this case is particularly troubling not only because it sets a bad precedent for the grand jury system, but also because it allows prosecutors who may have otherwise followed up with an evasive witness to allow a question to remain unanswered solely to pin the witness with an obstruction of justice charge. Normally, if a witness gives a prosecutor an evasive answer, the prosecutor would get the witness to a point whether he either answers the question or commits perjury. Now after the Bonds conviction, prosecutors have another choice: allow a question to remain unanswered so if the prosecutor cannot get the witness to perjure himself, he at least can stick the witness with an obstruction of justice charge.

For Bonds, the obstruction of justice charge may mean up to 10 years in prison under the federal statute, but Federal Sentencing Guidelines call for 15-21 months. Bonds’ attorneys are seeking to have the jury’s decision thrown out. The post-trial conference was originally scheduled for May 20, 2011, but it has now been delayed until June 17, 2011, giving Bonds’ attorneys more time to refine their arguments.

Did Drug Company Lawyer Make False Statements to FDA?

When regulatory agencies ask major corporations to hand over documents to them as part of an ongoing investigation, there’s normally a pretty clear understanding of how things work: if the agency doesn’t receive the full set of documents it is asking for, it negotiates with the company, or ratchets up the urgency of the request, or goes to court to enforce a subpoena.

What it hardly ever does is ask the Justice Department to step in, years later, and seek an indictment of a high-ranking corporate in-house counsel for obstruction of a legal proceeding, making false statements, and concealment of documents.

But this may be changing. On November 9, 2010, the Justice Department announced the indictment of Lauren Stevens, a now-retired vice president and associate general counsel at GlaxoSmithKline, the British pharmaceutical giant, in connection with Stevens’ actions back in 2003 when the FDA was investigating GSK for allegedly promoting one of its drugs for unapproved uses.

The indictment says Stevens led a team of lawyers and paralegals responding to the FDA’s request for documents about GSK’s promotion of Wellbutrin, an anti-depressant, for weight loss and other uses that the FDA hadn’t approved. (Actually, the indictment doesn’t name the company or the drug, but many sources confirm their identity.)

Stevens, according to the indictment, knew that GSK had set up marketing programs to promote the use of the drug against obesity and that it had paid many physicians to make speeches about that use to other doctors. But Stevens told the FDA that GSK had done nothing of the sort. She wrote to the FDA, for example, that GSK “has not developed, devised, established, or maintained any program or activity to promote, either directly or indirectly, the use of [the drug] to achieve weight loss or treat obesity.”

And Stevens allegedly had seen slide presentations that physicians had put together about such unapproved uses, but she didn’t hand those over to the FDA. Any off-label uses, she said, were “isolated deficiencies” in GSK’s compliance program.

Interestingly, neither the company itself nor any of its other lawyers or officials were indicted. Could Stevens, as the head of a team of lawyers and paralegals that reported to top management, have acted on her own in withholding these documents and information? If GSK really planned to lie to the government, didn’t other people have to be part of the scheme as well? Shouldn’t they or the company itself have been indicted – if there really was such a conspiracy within the company?

Also, Stevens’ statements sound to us more like legal posturing on behalf of a client than like a criminal attempt to deceive the FDA and withhold information. It seems that she was telling the agency that GSK had no intent to promote the off-label uses, while knowing that individual doctors probably did so without the company’s permission.

If that’s the basis of the dispute – and both sides clearly think they have the better of it, with Stevens’ lawyers pledging that she will be exonerated – the criminal courts are the wrong place to work it out. The facts may eventually show that Stevens did in fact violate the federal criminal laws, of course. But ordinarily, this kind of discovery dispute is worked out behind the scenes, between the federal agency and the company, with harsh words perhaps but without a criminal case against an attorney. That seems the best place to handle it.

At the very least, lawyers who respond to federal agencies’ demands now had better look very carefully at what they say.

Perjury Statute May Pose Problem for Clemens Prosecution

Last month, a federal grand jury indicted former Major League Baseball pitcher Roger Clemens on charges of obstruction of Congress, making false statements, and perjury. The six-count indictment alleges that Clemens obstructed a congressional inquiry in 2008 and lied to a House committee in 15 statements under oath, including denials that he had never used steroids or growth hormones. Clemens had been prominently mentioned in the Mitchell Report, Major League Baseball’s own accounting of its steroid problem, and he voluntarily went to Capitol Hill to testify before Congress and clear his own name.

Clemens adamantly denied any steroid use, testifying: “Let me be clear. I have never taken steroids or HGH.” It is this statement, among others, that is now the subject of the indictment.

Clemens continues to insist that he told the truth. Although three counts of the indictment focus on false statements made by Clemens (18 U.S.C. 1001), two counts focus on perjury (18 U.S.C. 1621), which is more difficult to prove. Specifically, a witness under oath or affirmation in federal official proceedings violates 18 U.S.C. 1621 if he gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory. In other words, testimony that is literally true, even if deceptively so, cannot be considered perjury.

Prosecutors generally face an uphill battle in using this section because they have to prove that, at the time of the testimony, the witness did not believe his statement to be true. In addition, prosecutors need to present the testimony of one witness plus at least some corroborative circumstantial evidence to corroborate that the statement made by the defendant under oath was false. Conviction under section 1621 requires not only that the defendant knew his statement was false (“which he does not believe to be true”), but that his false statement is “willfully” or deliberately presented.

Perhaps the most famous example of false statements is the Martha Stewart case. There, the prosecutors charged Stewart with a violation of the false statements statute. According to the indictment, Stewart lied to investigators by telling them that she and her stockbroker had previously agreed to sell nearly 4,000 shares of ImClone Systems if their market value fell below a certain price, and altered a phone message from the broker in her assistant’s computer immediately following a lengthy conversation with her attorney. Because Stewart did not testify under oath, she was not charged with perjury. Even had the statements been made under oath, prosecutors would have faced a tough time proving that Stewart did not believe her statements to be true at the time she made them. The subjectivity of this requirement under 18 U.S.C. 1621 makes perjury charges difficult to prove.

Clemens faces a combined maximum sentence of 30 years in prison and a $1.5 million fine if convicted of all charges. Under the U.S. Sentencing Guidelines, however, Clemens would probably face no more than 15 to 21 months in prison. Clemens’ case is prime example of a “self-inflicted wound,” as former Representative Tom Davis, the top Republican on the House of Representatives panel at the time of Clemens’ testimony, called it. Clemens did not need to testify before the congressional committee. He was not under subpoena at the time. His freedom now hangs in the balance.