The Yin Blog

Martha Stewart as a bad precedent for Roger Clemens

Former baseball superstar Roger Clemens has been indicted for obstruction of a congressional inquiry, false statements, and perjury, based on his denial of use of steroids and human growth hormone during a congressional investigation.  Vermont law prof Michael McCann notes some potential difficulties in the prosecution case:

Clemens, though, is not an ordinary person. For starters, he will be able to afford the kind of legal representation that few defendants could imagine. Being able to assemble a "legal team" is itself often a marker of wealth. Clemens will likely retain seasoned and prominent defense lawyers who have tried and won perjury cases and also those who will adroitly attack the DNA evidence offered by the government. Given that a conviction could carry a prison sentence, expect Clemens to spare no expense.

It's certainly true that Clemens is super wealthy and can hire the best lawyers.  But 18 USC s 1001, the false statements statute, is a powerful tool for prosecutors, and a previous high profile defendant, Martha Stewart, should worry Clemens, given the remarkable similarities between the two cases.

Stewart was charged with lying to government agents and lawyers about a perfectly timed trade in which she sold all of her stake in a biotech company, ImClone, the day before the FDA announced rejection of its single drug; as a result, she avoided a loss of $40,000.  The government came to suspect that she had received a tip from her broker, who was also the broker for ImClone's CEO; that CEO had also tried to dump all of his shares of ImClone before the FDA announcement.  Stewart and her broker told the government agents falsely that the selling was pursuant to a pre-agreed plan.  Both were charged with obstruction of justice, conspiracy, and false statements, and convicted.

Like Clemens' case, Stewart's involved a key prosecution witness with some questionable motives.  Her broker's assistant, Doug Fanueil, was the person who actually testified to telling Stewart about the ImClone CEO's efforts (at the direction of the broker, who was on vacation), so his testimony, if accepted, was quite damning.  On the other hand, Fanueil had already pleaded guilty to a lesser charge, so he had an incentive to favor the government with his testimony.  In this regard, Fanueil stood in a similar position that Clemens' former trainer, Brian McNamee, now stands.  Indeed, McCann has sketched the argument in his column: "Clemens' lawyers will also portray McNamee as throwing Clemens under the bus to avoid a government prosecution of his own."

However, the government had two other important witnesses in Stewart's case.  One was Stewart's assistant, Ann Armstrong, who was clearly uncomfortable as she testified that Stewart used her computer to alter a phone log to obscure the message that her broker left for her.  Though Stewart immediately changed the message back, her initial alteration suggested guilty knowledge.  The second witness was her (former) good friend, who was with her on vacation when she received the call from her broker's office.  This friend testified that Stewart said her broker had given her news that the ImClone CEO was trying to sell his shares and maybe she should too; "isn't it good to have brokers who will tell you things," the friend testified that Stewart said.

Unlike Fanueil, neither of these witnesses had any reason to favor the government.  Both were Stewart's friends.  Accordingly, their testimony against her was no doubt that much more damaging, because they seemingly had no motive to lie in this way.

In Clemens' case, Yankee pitcher Andy Pettitte testified before Congress that Clemens had admitted to him about using HGH.  Pettitte and Clemens were teammates and Pettitte reportedly idolized Clemens, so again, he seemingly has no motive to lie so as to harm Clemens.

Does it matter if Clemens testifies?  Well, in the Stewart case, she did not testify, but her broker did.  Both were convicted.

Just because one jury convicted in the Stewart case doesn't mean, of course, that a different jury would convict in the Clemens case.  But there are strong parallels to the Martha Stewart case, and that one did not turn out well for the super-rich defendant.

McGwire looks smarter than Clemens

Now that former baseball star Roger Clemens has been indicted for obstruction of justice, false statements, and perjury for allegedly lying about steroid and HGH use during testimony before Congress, it looks like former slugger Mark McGwire was much smarter.  McGwire also testified before Congress and was mocked for his evasive and non-responsive testimony, which basically sounded like, "I'm not here to talk about the past, just the future" to every question posed to him about whether he had used steroids.

Non-responsive?  Yes.

False and perjurious?  Not all.  Not even close enough to need reliance on the "literal truth" defense.

Of course, Clemens is presumed innocent at this point in the eyes of the law, but section 1001 (false statements) is a pretty easy statute for the government to get convictions under.  Heck, even the hold-out juror in the Rod Blago case voted to convict him of the 1001 offense.  Other prominent celebrities who've been busted under 1001 include Martha Stewart, Scooter Libby, Marian Jones, and john McTiernan.

Thanks for nothing (almost), or when form generated letters sound silly

I got this letter in the mail today from Caltech -- the palace of horrors where I suffered four years in exchange for a B.S. degree:

The bold-face text is in the original.  And it's entirely true, the last donation that I made to Caltech was 21 years ago!  And although the letter says $1, I actually sent only 1 cent -- in a postage pre-paid envelope, of course.  The alumni office person who opened my envelope sent me back a letter saying that he spent months trying to figure out what to do with my "contribution" and finally decided to kick in 99 cents to bring it up to $1 in my name.  He also said that he would take my name off future mailings.

And for a while, I did not get any solicitations from Caltech.  Several address changes later, from Los Angeles to Berkeley back to Los Angeles to Oklahoma City to San Diego back to Los Angeles to Iowa City, the Caltech Alumni Association found me again.  And then followed me here to Oregon.

But come on, it sounds a little absurd to send an alum a letter thanking him for a $1 contribution made 21 years ago.  I realize this is probably the result of a mail merge, but it goes to show the limitations of such complete form generated letters.  Some sort of filter would probably be a desirable addition to stop wasting the institution's money.

Useful things to do with old casebooks!

Thanks to "burned" CIA operative Michael Weston (from Burn Notice), I've discovered a new use for old casebooks!  In a recent episode, Weston had to go into prison to protect an inmate from being killed.  Knowing that the bad guys were heading over with shivs, Weston took his client into the law library, grabbed a bunch of old law reporters, and stripped the covers off.  He then explained that the hardcovers weren't strong enough to stop a bullet from a gun, but they were plenty strong enough to deflect small knives.

So, if you've finished a course and you can't sell the casebook because a new edition has just come out, well, think about it -- homemade body armor! 

Cinema interruptus

We just got back from a week in Vancouver, B.C., about which I'll have more to say later.  In the meantime, I'll share this story. . . .

We were staying in downtown, just a few blocks away from a big movie theater.  Having not seen a movie in the theater in a while (the last being a matinee of "Mamma Mia!"), my wife and I decided to take advantage of my dad's presence to go catch a late flick.  The choices came down to "Salt" and "Inception," and action won out over mystery.  After finishing the night time routine with our boys, we waited until they were asleep, had my dad come over to our unit, and my wife, my brother, and I headed out to the theater.

$13 (C) for an adult ticket?!?  That seems pretty excessive, even for Vancouver.  Or are U.S. ticket prices that outrageous now?  (The exchange ratio is pretty close to 1:1 right now.)

Anyway, I dutifully put my cell phone on vibrate/silent mode and settled down to watch the movie.  First, we were subjected to previews for a bunch of horror flicks, like "Paranormal Activity 2."  I wouldn't have thought that "Salt" necessarily appealed to horror fans, but whatever.  The movie started off pretty well, and Angelina Jolie made for a pretty good MacGyveress in improvising weapons for escaping the CIA building.  Then followed some nifty running/car chasing scenes, and the plot was pretty well-laid out at that point.

And then my phone started to light up and buzz softly . . . .

I got up quickly to head into the lobby to answer the phone.  However, the side door that I took did not lead back to the lobby, and in fact, it dumped me into a dark and lonely hallway.  Worse yet, as the door clicked shut, I saw a sign that informed me "no theatre return; street exit only."  Great.

My dad was on the phone, telling me that my younger son had woken up and was basically inconsolable.  I told him I was on my way back.  I kept going down semi-lit passages until I reached the ground floor and found a door to the street, and then I ran all the way back to the condo building and took the elevator up.  When I got back to the condo, my little son was in my dad's arms, crying to the point of hyperventilation.  I took him from my dad and tried to calm the little guy down.

"Where were you?" he asked.

"Uh, I was outside," I dissembled.  "With Mommy and your uncle."

"I want to go outside," he said.

"Uh, no," I said.  "Mommy and your uncle and I were at a grown-up movie," I said.  "But your grandpa was here with you, and I'm here now."

To settle him down enough to go to sleep, I had to read another bedtime story for him.  By the time I got him back down to bed, it was way too late to bother going back to the theater and try to talk my way back in. . . .

A pity, as I was enjoying the movie quite a bit.  Not enough to pay another $13 to find out what happened, though.  I guess I'll just wait for it to hit the "on demand" rental market ( i.e., don't spoil it for me!).