Oklahoma Criminal Defense Blog

The federal government has been chasing award-winning former baseball pitcher Roger Clemens since 2007 with a swarm of investigators and prosecutors.  Ninety agents worked on the case and 200 interviews were conducted.  After one jury was stopped due to a prosecution miscue that caused a mistrial, the second jury trial poured out testimony from 40 witnesses over 7 weeks.  The trial concluded a few weeks ago with a jury verdict of not guilty on all counts.

Having faced one count of obstructing Congress, three counts of making false statements and two counts of perjury, all arising from his alleged use of performance-enhancing drugs and his denials under oath to a Congressional committee, Clemens walked out of the courtroom a free man.  Why Clemens ever testified before Congress in 2008 was a mystery to me.  He did not have to appear, but when he did, he testified to a House committee that it was liquid vitamin B-12 and lidocaine with which Brian McNamee,  his former strength coach, had injected him.  But Brian McNamee testified to the same committee that he had injected Clemens with steroids and human growth hormone, both banned performance-enhancing substances. So, to prove perjury, the government had to prove Clemens lied about what actually happened with those injections.

While wondering why Clemens volunteered to stick his head in this noose, let us also wonder why the federal government has gone so long and squandered such resources on sports doping. Reports are that the government has spent $50 million for its investigations of doping for all sports figures over the last few years, this in middle of a slump in the economy.  Yes, the public is entitled to integrity even in its sporting events, but how much are we willing to pay?

Two witnesses against Clemens that were vital to the government’s case had serious weaknesses.  Brian McNamee was the chief witness for the government as the only person who claimed to be an eyewitness.  In fact, McNamee claimed to be the person who injected Clemens with prohibited substances.  In his 24 hours of testimony given over 5 days on the witness stand, McNamee  claimed he had kept a needle and medical waste from one his injections of Clemens in 2001 in a Miller Lite beer can.  But he also said he kept in that can leftovers from injections of other players.  McNamee could not explain how the leftovers from the other players got into that same beer can.  Under cross-examination, he admitted he never told the government agents about putting the materials from the other players in the same can.

After the verdict, jurors said they thought it was devious of McNamee to secret this personal medical evidence in beer can for years.  The jurors also confirmed that McNamee had too many consistencies. The jurors did not believe McNamee’s claim that he had preserved from the incident and kept it in beer can for 7 years. He admitted he initially lied about his involvement with steroids.  Clemens’ criminal defense lawyer painted McNamee as a chronic lier, the jury agreed, and that spelled doom for the government’s case.

Clemens’s criminal defense attorney raised numerous unsavoury personal details from McNamee, that he had tampered with a dead body when he was a New York City policeman, he lied to investigators looking into a Florida incident in 2001, that he had two driving-under-the-influence arrests in 2002, and that he got caught up in an Internet fraud investigation after ordering diet pills over the Web in 2004.

The other important witness for the prosecution was Andy Pettitte, Clemens’ long-time friend and teammate.  Pettitte testified to hear an admission by Clemens, the next best thing to an eye witness. Pettitte testified Clemens acknowledged to him in 1999-2001 Clemens had used HGH, a growth hormone.  But then, every criminal defense attorney’s dream, on cross-examination, Pettitte backed up and admitted he was not sure now what Clemens had said those many years ago and admitted it was fair to say there was only a “50/50″ chance he misunderstood Clemens.  Unlike McNamee, Pettitte had no fleas on him and had no apparent motive to lie about his friend, Clemens.  The government lawyers knew they had problems with McNamee, but Pettitte’s cratering was surely unforseen.

So the government’s case went from one eyewitness and one admission from the defendant to none of the above, and the hard tip of the government’s spear turned out to be marshmellow.  No wonder the jury had reasonable doubt about Clemens’ guilt.

First, it was Barry Bonds.  Next, it is Rogers Clemens, and, after that, maybe Lance Armstrong.  The cost to the federal government so far, including the investigation of BALCO (Bay Area Laboratory Co-Operative), is over $50 million.  Whether it’s worth that brings different responses.   Proponents insist it is worth it for the “integrity of sports” or perhaps for the “integrity of the justice system,” since the government ended up taking Barry Bonds to trial on perjury that had been committed during the investigation.  Similarly, Roger Clemens will be prosecuted for perjury committed in his voluntary giving testimony to Congress.  Opponents insist the $50 million (and counting) could be well used at catching real criminals or otherwise spent by the federal government.

The investigator who has made it all happen is Jeff Novitsky.  He is now employed by the Federal Drug Administration’s Office of Criminal Investigations, but he was an IRS agent when he began the investigation of BALCO and famously searched the dumpster outside its company headquarters in Burlingame, California.  Novitsky has been digging for nine years now.  Until the Barry Bonds trial, Novitsky had succeeded in convicting ten of the eleven charged from the BALCO investigation, including a confession from Olympic sprinter Marion Jones.  Bonds was convicted on one count of perjury, the jury having hung up on three other counts.  There is strong speculation that the trial judge in Bonds’ case will not sentence him to hard time, however.

Novitsky served a subpoena on the laboratory that tested the confidential drug results from Major League Baseball, showing he is willing to squeeze the privacy of anyone whom he perceives as bad guys or anyone at all who can fit into his quest for evidence.  Criminal defense lawyers are well-acquainted with law enforcement heroes who will are willing to “whatever it takes.”   And that is a dangerous attitude to take for those with all the power possessed by federal law enforcement, dangerous to citizens, that it.  Maybe Novitsky is not that dangerous, but you might have a tough time convincing the baseball players as they watch leaks in the press about who failed those “confidential” tests.  Major League Baseball and the player’s union are still fighting to keep these results confidential, notwithstanding those leaks to the press.

Some question the use of the Federal Drug Administration to prosecute the use of steroids by professional sports participants as not even a “danger to the public health.”  Only one U.S. Representative has raised significant questions in hearings before the Congress about Novitsky’s unending investigations, but now Novitsky may get help pursuing Armstrong from other agencies, like the I.R.S., the F.B.I., the D.E.A.  INTERPOL may even get involved.

One angle of investigation the government may take against Lance Armstrong is whether he or his teammates misappropriated money from their team sponsored by the United States Postal Service in 2002 -2004 to purchase performance-enhancing drugs.  That could lead to charges of fraud and illegal importation.  Former Postal Service teammate Floyd Landis has allegedly said the team sold 60 new bicycles to finance the purchase of steroids, and Landis is allegedly in contact with Novitsky.

One area of concern to a criminal defense lawyer is that both Barry Bonds was, and Roger Clemens is, charged with perjury that they could have avoided.  Barry Bonds could have insisted on immunity before testifying to the grand jury before which he was convicted of perjuring himself.  Similarly, Roger Clemens did not have to testify before Congress without immunity.  Surely his criminal defense attorneys told him that.  But Clemens did testify, without a grant of immunity, and he will face trial next month for perjury in that testimony to Congress, in denying he took steroids.

Although the statute of limitations on Armstrong’s activities has or will soon run, all the government needs to do to restart the statute is to issue another subpoena and get a new piece of evidence for a new count.  At least Armstrong has been smart enough not to volunteer to testify.

But now there is a new wrinkle the government is investigating: witness intimidation.  Just this month, the F.B.I. requested surveillance video from a restaurant in Aspen, Colorado.  The bureau wants to know more about a confrontation between Armstrong and his former teammate, Tyler Hamilton.  Hamilton testified last year to a federal grand jury in Los Angeles, and he appeared on a television program telling about a systematic scheme for using dope by the U.S. Postal Service team.

Armstrong has a house in Aspen and is a regular at the Cache Cache restaurant there.   According to Hamilton’s lawyer, Armstrong held out his arm to block Hamilton and began berating him.  It was Hamilton’s lawyer, Chris Manderson, who called the F.B.I. about the incident, quoting Armstrong as saying, “We’re going to destroy you on the witness stand and we’re going to make your life a living hell.”

However, according to the Jodi Larner, co-owner of the restaurant, Armstrong spoke to Hamilton but never left his barstool.   Tony DiLucia, a patron standing next to the two of them, said he could not hear what was said but could tell from the body language that things were not combative.  He said he nothing aggressive.

Larner later on that evening told Hamilton he was not welcome to come back to the restaurant because his group did not tip their server.  The next day she received threatening voicemails because she had stood up for Armstrong the night before.

After an 8-year investigation, a 12-day trial with more than two dozen prosecution witnesses presented and finally 4 days of jury deliberation, the United States government finally obtained a conviction of Barry Bonds, but just barely.  The jury convicted Bonds of Obstruction of Justice but could not reach a verdict on the other three counts tried.    U.S. District Judge Susan Illston declared a mistrial on those counts on which the jury could not reach a unanimous verdict.  Whether the government will take those counts to another jury has not been announced.

The Department of Justice investigation of the Bay Area Laboratory Co-Operative (BALCO) illegal, trafficking in steroids led to Bonds’ indictment in 2007.  During that investigation, Bonds appeared before the grand jury in 2003, and he was acdcused of lying to them in his testimony.  Bonds testified to the grand jury he never knowingly used performance-enhancing drugs.  He admitted having taken steroids but said Greg Anderson, his personal trainer, had told him they were flaxseed and arthritis cream.

Bonds did not testify on his own behalf or present any other witnesses at this trial.  Observers speculated indicated Bonds’ criminal defense lawyers’ this indicated confidence in the weakness of the government’s case, but such a decision can be made for other reasons.  That is the kind of intuitive judgment call lawyers have to make in the flow of the trial, and one which can sometimes be critical.

Bonds’s indictment came in 2007, 50 days after he made his last appearance in the batter’s box and 100 days after Bonds bettered Hank Aaron’ 755 career home run record with 762 home runs as a member of the Pittsburgh Pirates and the San Francisco Giants.  Bonds had already set the Major League Baseball season record when he hit 73 home runs in 2001.

Whether Bonds will serve any prison time is doubtful, assuming the conviction withstands appeal, in light of how this judge has sentenced others from this investigation.  Judge Illston sentenced Greg Anderson in 2005 to 3 months in prison and 3 months home detention upon his plea of guilty to one count of money laundering and one count of distribution of steroids.  He was then jailed for about a month until the conclusion of the trial for contempt of court, namely for his refusal to obey the judge’s order to testify against his life-long friend, Barry Bonds.  Regardless, whether Bonds does time, his chances of ever reaching the Baseball Hall of Fame took a serious hit, regardless of his records, including winning the Most Valuable Player award for an unprecedented seven times.

The investigation hit the headlines when I.R.S. agents raided BALCO and Greg Anderson’s condominium in 2003.  They seized evidence of what agents claimed showed conspiracy to distribute designer steroids that were undetectable even in the latest drug tests.  As time went, 4 sports figures, including Olympic sprinter Marion Jones, and 6 steroid dealers were convicted.  Major League Baseball hired retired U.S. Senator George Mitchell to investigate, and his report identified 86 ball players who were users of outlawed drugs.

Jeff Novitzky, the federal agent who started the investigation of BALCO, wanted the BALCO probe to be widened, but the Ninth Circuit U.S. Court of Appeals ruled last year that the urine samples and records seized in 2004 of 104 baseball players were seized illegally.  Novitzky was also instrumental in the developing the government’s case against Roger Clemens, the record-setting baseball pitcher who is scheduled for jury trial for lying to Congress about his use of performance-enhancing drugs and for investigating pro cyclists, including Lance Armstrong.

After much publicized repeated failures at probation, Lindsay Lohan is finally seeing the inside of a jail cell.  Some welcomed the judge finally dropping the hammer as long overdue.  They believed she had gotten away with too much too long.  It gnawed at a lot of people to think they would never receive so many chances, that her celebrity status gave her special privileges.    They tired of watching her on television partying late and then missing her court date the next day.

Los Angeles Superior Court Judge Marsha Revel sentenced Lohan to 3 months in jail.  She is expected to serve about one-quarter of that sentence, about two weeks.  The discount in time is credited to jail overcrowding.  After reporting to the jail in Beverly Hills, she was taken to the Century Regional Detention Facility a women’s facility in Lynwood, where she will serve her sentence in an isolation unit that previously hosted Paris Hilton in 2007.   She will be separated from the general population for the same reason, the sheriff claims: her own safety.  She was sentenced to 3 additional months rehab on probation after she finishes her time behind bars.

In sentencing Lohan, the judge found Lohan had repeatedly lied to authorities and to the court, failed to attend weekly alcohol education classes required by the terms of probation on her driving under the influence charge.  Shawn Chapman Holley was her lawyer at the sentencing, somewhat grim as the television cameras watched.  After the sentence, Robert Shapiro, famed for being a member of the O.J. Simpson dream team, announced he was representing Ms. Lohan, only to be replaced again by Ms. Holley again after a week.  Ms. Lohan had stayed the weekend before she was sentenced at Pickford Lofts, a sober-living rehabilitation center founded by Mr. Shapiro after his son died of a drug overdose.

After listening to a tearful Lohan promise to do better this time and alibi for her repeated failures, the judge recited item for item the broken promises, missed appointments, and lies.  The judge noted Lohan had lied about being driving at her first arrest in 2007 and again in her second arrest two months later, both arrests for driving under the influence, and again lied about to whom the pants belonged in which a white substance was found, yet tested positive for cocaine in her system.

The judge declined Lohan’s lawyer’s request for more out-of-custody ankle monitoring.  Ms. Lohan told the judge  she respected the court process.  While addressing the judge, observers could see an expletive written on the fingernail of Lohan’s middle finger, but no one knows whether the judge ever saw it.  Lohan claimed she believed she was in compliance with the requirements of the program, yet she missed 9 classes.  The judge’s 90-day sentence was harsher than the penalty sought by the prosecution.

The judge initiated the revocation of Lohan’s probation by issuing an arrest warrant because the alarm activated from the monitoring ankle bracelet on Lohan’s ankle, the SCRAM (Secure Continuous Remote Alcohol Monitor).  The ankle bracelet announces the person’s consumption of alcohol or tempering with the bracelet.  However, the judge made clear her sentence was based on missed meetings, not the SCRAM violation.

Most people suspect Ms. Lohan will be going to a country club type of facility to serve her sentence, but that is not how former inmates describe it.  They say it is not a nice place.

The prosecution of baseball home run record-holder Barry Bonds has been on hold while the government appealed a district court ruling that excluded evidence that the government must have considered important.  Urine samples that was collected by Bonds’ personal trainer, Greg Anderson, tested positive for drugs, and the government wanted to use it as evidence that Barry Bonds knowingly used steroids.  Now the district court’s ruling of exclusion has been affirmed by the Ninth Circuit Court of Appeals.

“Presumably, the government wouldn’t have delayed this case for a year and a half unless they thought it was very important,” Bonds’ lead attorney, Allen Ruby stated.  He will wait for the government’s next move toward trial, if the government still wants to take the case to trial.

The trial court in San Francisco ruled the urine samples were inadmissible.  Anderson reportedly had told BALCO vice president James Valente that the samples belonged to Bonds. The government intended to call Anderson as a witness, at least to identify the samples.   But Anderson told the district court that he was not going to testify against Bonds, that he would rather go to jail. Without Anderson to identify the samples, the courts ruled, the samples were not admissible.

The excluded evidence constitutes three of four samples from Bonds.  The fourth sample came from a Major League Baseball test.  This was supposed to be confidential and was collected from all players only to assist baseball determine whether it had a drug problem with its players.  The lab analyzed that sample and concluded Bond’s sample was negative for steroids, but federal agents seized the sample, had it retested, and the designer steroid THG was discovered.

Also ruled admissible by the trial judge a recording Bonds’ former personal assistant, Steve Hoskins, secretly made of a conversation with Greg Anderson in 2003, standing in front of Bonds’ locker.  In that conversation, Anderson discusses how he was helping Bonds avoid infection by injecting him in, rather than on just one spot, on different places on his buttocks.  Bonds testified to a grand jury that he never knowingly used performance-enhancing drugs and also testified no one but a doctor ever injected him.  The Department of Justice is prosecuting Bonds for perjury from that grand jury testimony.

The exclusion of the three urine samples is based on the hearsay rule.  Greg Anderson must testify where the samples came from.  He is not going to testify; therefore, they cannot be identified.  But Anderson’s statements to Valente are obviously an avenue the government would seek to adopt Anderson’s statements.

Hearsay evidence is the out of court statement of a witness when the statement is offered for the purpose of proving the truth of the statement.  The general rule is to exclude hearsay evidence.  However, the Federal Rules of Evidence, as well as the Oklahoma Evidence Code and probably every jurisdiction in the United States, lists a number of exceptions.  Federal Rule 804 lists hearsay exceptions in which the availability of the declarant is immaterial, Rule 805, in which the declarant is unavailable.  There is even a “Residual Exception,” in Rule 807, which allows admissibility for otherwise not described hearsay for statements “having equivalent circumstantial guarantees of trustworthiness,” with some conditions “if the interests of justice will best be served.”  Talk about leaning over backwards.

But the urine samples were excluded on the basis of lack of identification of the samples.  The appellate court found there was no indication Bonds exercised any control over Anderson in determining when the samples were obtained or to whom they were delivered or even what tests were performed on them.

Former Illinois Governor Rod Blagojevich’s trial has begun.  Recently,  the first day of jury selection (voir dire) for the federal corruption trial took place.  The Pepperdine University law graduate is accused in 24 counts of trying to sell the U.S. Senate seat vacated by President Oboma when he resigned his Senate seat.  U.S. District Judge James Zagel began screening a pool of almost 100 potential jurors.  The judge got through 29 potential jurors.   Their identities are not public.  They are addressed by number.

Blagojevich was in celebrity mode-or maybe running-for-office-mode.  Smiling broadly, he waved and shook hands with supporters when he arrived at the courthouse.  He posed for cell phone camera photos for some on request, as his wife, Patti, tugged on his arm to get into the courthouse.   “The truth shall set you free,” he said to reporters.   He kissed one supporter who held up a sign supporting him.  He hugged one man who said, “God bless you, Governor. I’m praying for you.”

Inside the courthouse, Patti stepped up to reporters and television cameras and told everyone of Blagojevich’s innocence.  She thanked everyone who has supported her husband since his impeachment and said she was glad to get the trial underway.

The ex-governor’s older brother, Robert, of Nashville, Tennessee, also accused, arrived and entered the courthouse outside the roped-off area reserved for the ex-governor, and sat at a separate table in the courtroom.  He left for lunch while the ex-governor and his wife ate sandwiches in the courtroom.

The judge spent considerable time inquiring about the jurors’ exposure to publicity about the case.  Most had seen or heard something, but they said they could nevertheless be fair.  This selection process is expected to continue for several days.

Jury selection is a critical portion of any trial.  Likely defense lawyers will be looking for jurors, probably blue collar, who would identify with their client’s background from humble roots.  It is common belief that most jurors buy into the prosecution’s view from the beginning in the belief that a defendant must be guilty if he is accused.  It is that bias that criminal defense lawyers fight from the first minute to the last minute of any trial.  Defense lawyers focus on the requirement for unanimity for a verdict, and one of Blagojevich’s attorneys, Sam Adams, Jr., is known to focus on persuading just a certain few members of the jury during a trial.

Judge Zagel questioned an algebra teacher, a legal assistant, a computer lab technician, a retired customer service representative, and an insurance actuary.  When the customer service representative said she had trouble remembering words and names.  “Welcome to the club,” the judge retorted.  He asked another, who worked for his wife, if his wife was a difficult employer.   Another potential juror was a former precinct captain who said she would ask for guidance from her heavenly father to help her decide guilt or innocence.

Flashbacks on jury selection recall Blagojevich’s predecessor, Governor George Ryan, who was convicted of corruption in a federal trial.  Ryan’s trial almost resulted in a mistrial when several of the seated 12 jurors had to be replaced by alternate jurors during the trial, including two of them during actual deliberations after the close of all evidence.  That required deliberations to begin all over with the new members.  The judge decided to make replacements after it was discovered some of the jurors had concealed arrest records during voir dire.

Prosecutors claim they have 500 hours of secret recordings of the ex-governor.  Of course, the F.B.I. leaked the tapes.  Blagojevich claims the tapes, when listened to in their entirety, prove his innocence.  He is facing a maximum of 450 years in prison and $8 million in fines.

Charlie Sheen is the highest paid actor in television today.  He also appears to be one of the more troubled.  His problems cannot stay out of the headlines.  Star movies such as Platoon and Wall Street and the hit comedy series, “Two and a Half Men,”   Sheen, son of well known movie star, Martin Sheen, has struggled with alcohol and drug problems for years.

“Two and a Half Men” is one of the most popular TV programs and one of the costliest for advertisers.  The average cost of a 30-second ad in the show is $226,335, according to Ad Age’s annual survey of ad prices for prime-time broadcast programming.  That price is just behind NBC’s Sunday Night Football and ABC’s Grey’s Anatomy.  CBS is concerned Sheen may not show up to carry on their prized television show, either this time or the next time.  For a while, his bad-boy image carried a little glamour, but as his antics have continued, his unpredictability is a liability to television producers and advertisers.

In the nineties, Sheen was a regular in the tabloids for his problems.  He reported struggling with use of ecstasy three years before, saying, “Ecstasy should be called the drug from Hell – because tha’s where it leaves you.”  His bad publicity goes back to 1990, when he checked himself into a drug and alcohol rehabilitation clinic.  In 1995, he was sued by a woman who claimed he struck her in the head when she refused to have sex with him.  But the apex was when was his appearance as a witness in the 1995 prosecution of Hollywood madam Heidi Fleiss in which he admitted he had ordered at least 27 prostitutes from madam Fleiss and ran up bills totaling $50,000.

After ending a six-month marriage to Donna Peal in 1996, , Sheen announced he was becoming a born-again Christian.  He said fast living was a lot of fun but “there is such a thing as too much fun.”

His latest problem had started Christmas morning, his third wife, Brooke Mueller, called the police to report a fight in the house they were renting in Aspen, Colorado.  They have been married since 2008 and have two children but they were legally separated before the fight.  Sheen’s version is that he was fighting about Mueller’s partying and she went nuts on him. He admits to breaking her glasses but denied attacking her. Mueller’s version to the police, so the police claim, was that Sheen choked her and threatened her with a knife by holding a swtichblade knife to her throat, but since then she has quit talking to the police.  Sheen posted $8,500 bond that night and was released.
Later Sheen entered rehab “as a preventive measure,” prompting invention of the word “prehab.”  Mueller, who has said she has no plans to divorce Sheen, then went into rehab.

Sheen faced a prison sentence with this charge, but a plea bargain apparently reached with the prosecution would deliver Sheen to the Pitkin County Jail for a spell, maybe up to thirty days.  There, the cells look like dormitories, floors are carpeted, a nearby hospital prepares the meals for lunch and dinner, supervised by a dietician.  Charlie Sheen had prime rib on Christmas, causing furor in the tabloids, but that was the regular menu that day for all inmates.

Pitkin County Sheriff Bob Braudis presides, and he notes that most of his inmates are pretrial inmates, presumed innocent of the charges they face, which criminal defense lawyers are acutely aware but many law enforcement types are not.

The jail has a capacity of 24 but usually averages nearly half that, supervised by a staff of 12.  The sheriff hopes inmates will leave better men and women. The county’s website gives the jail’s mission as a safe, secure environment and services to “enhance physical and mental wellness and encourage self rehabilitation and successful re-integration to society for all inmates.”
Prisoners spend their days in the common room, watching television, reading, playing cards or otherwise passing the time.  They are allowed to place collect telephone calls, exercise  and visit relatives and friends regularly.  They can also go outside in the jail parking lot so long as they stay inside a fence.

Sheen’s latest problem had  seemed to be worked out, but a new wrinkle has developed.  Sheen was set to serve his jail sentence by coaching actors at Theater Aspen by day and return to jail by night.  Now reports are that the deal has fallen through, reportedly because an Aspen jail official tried to reduce the daily time Sheen would spend at the theater, out of jail.  And Sheen, a chain smoker, would have been banned from smoking outside the jail, faced a longer probation period, and would be restricted to eating only the meals provided by the jail.  That plea deal would have amended the most serious of the charges to a misdemeanor, the charge that could send him to prison for three years.  Sheen is still getting $1.8 million per episode of “Two and a Half Men.”

I can’t imagine this kind of a sentence being handed down in Oklahoma or for other domestic abuse defendants, especially with multiple offenses. However, it appears that at least some in the Hollywood crowd have been deemed to be above the law. With these examples of nothing punishments it’s no wonder Sheen keeps repeating the same criminal offenses. Our system was designed with the intent that the punishment would fit the crime, but it certainly appears to be failing with this domestic abuse case.

Bernard Kerik was on top of the world.  He had served gloriously as police commissioner of New York City for Mayor Rudolph Giuliani.  Bernie was famous in his own right, often on television screens, sporting his trademark mustache and shaved head.  He was sent by President George Bush to reorganize the police force in Iraq.  Finally, he was nominated to head the Department of Homeland Security.   After that, things went downhill.

Kerik was indicted in federal court with corruption for allegedly accepting unreported gifts of construction work on his home.   Kerik failed to report as income more than $200,000 in rent paid on his behalf to use a luxury apartment where he lived with his family when he left his city post, paid for by Steve Witkoff, a commercial real estate developer. Also, a construction company with alleged mob ties paid for the $165,000 in renovations on Kerik’s home in Riverdale, the Bronx, apparently in hopes of obtaining a city license. In 2006, Kerik plead guilty in the Bronx to state misdemeanor charges stemming from those renovations.

In 2004, after nomination by Rudy Giuliani, President George W. Bush nominated Kerik to head the Department of Homeland Security.  Seven days later, Kerik withdrew his name from consideration.  Then fell the avalanche of questions about Kerik.

Had Kerik inappropriately lobbied New York City on behalf of Interstate Industrial, a construction company with alleged links to organized crime?  At first, Giuliani denied he knew about Kerik’s ties to Interstate Industrial when he appointed Kerik as police commissioner. Then in 2006, Guiliani acknowledged that city investigations commissioner, Edward Kuriansky, said Kuriansky has stated he told Giuliani in at least one briefing about Kerik’s problems, but Giuliani said he did not remember any such briefing.

Kuriansky’s diaries confirm that one of those briefings did take place.  Additionally, Kuriansky stated, based on his recollections and his diaries, he also briefed Dennison Young, Jr., one of Mayor Giuliani’s closest aides, about Kerik’s ties to the construction company only days before Mayor Giuliani appointed Kerik police commissioner.  Giuliani is well-known for the premium he places on loyalty and his own loyalty to others.  Giuliani Partners, his consulting firm did employ Kerik and continues to employ Alan Placa, a high school friend, in spite of allegations he molested young men years ago.

By the time Giuliani recommended Kerik for the Homeland Security job, his administration knew Kerik had acted on behalf of Interstate Industrial and knew about other criticisms of Kerik, including sending detectives to look for his lover’s cell phone and using police officers to research his autobiography.

In 2000, more than half the mayor’s cabinet opposed Bernie Kerik’s appointment to police commissioner.  They had concerns that included the fact that Kerik did not have a college degree, a police department requirement at the time for captains and above.

Giuliani met Kerik in 1990 at a fund raiser in New Jersey honoring a slain new York City police officer. Kerik was a decorated undercover detective with a ponytail and earrings, big biceps. Kerik cultivated political connections, such as the sheriff of Passaic County, N.J., who had made Kerik five years earlier the youngest jail chief in the county’s history.   When Giuliani ran for mayor in 1993, Kerik organized Giuliani’s security detail of off-duty officers to reserve the weekend shift for Kerik himself.

A year after Giuliani became mayor, he appointed Kerik first deputy correction commissioner to include supervision of Riker’s Island.   One year after that, Kerik was appointed  correction commissioner, where he showed up for spot inspections at 2:00 a.m.  When violence in the jails dropped, public praise climbed.  Now reported are some of his questionable activities then, such as his dating a woman who was a correction officer and his getting close to the department’s inspector general, whose responsibilities required him to avoid such closeness with other city personnel.  Later, one of his top deputies was convicted of taking $142,000 from a Correction Department that Kerik headed.  Another deputy was convicted of forcing staff members to do political campaign work and dispatching officers to renovate his home.

Lawrence Ray was a friend of Kerik and served as best man at Kerik’s wedding.  Ray even paid for much of the wedding, and Kerik in turn recommended Ray for a $100,000 job at Interstate Industrials, a New Jersey construction company with tens of million dollars in contracts with New York City.

Interstate Industrials hoped that Lawrence Ray could change relations with the City because, two years before, city investigators had found the company employed mob figures and denied the company an operating license. After hiring Ray, Interstate hired Kerik’s brother, and from then on, the then-correction commissioner began lobbying unofficially for Interstate. Kerik defended Interstate to the chief of enforcement for the city commission, a cousin of Giuliani who was reviewing Interstate’s license application.  Kerik telephoned an assistant commissioner at the Department of Investigation to say Interstate’s owners were clean of mob ties, so far as he knew.  He even had city detectives who were investigating Interstate meet Lawrence Ray in Kerik’s own city office, sending a strong signal to the detectives.  But the lobbying stopped in March, 2000, when Lawrence Ray and Edward Garafola, a mob soldier associated with Interstate, were indicted on a federal stock scheme not related to Interstate’s business.  New York City suspended Interstate’s $85 million in city contracts.

Three weeks later, Bernie Kerik interviewed for two hours with the Department of Investigation and talked about his relationship with Lawrence Ray, Interstate and its owners and his brother.  However, Kerik never mentioned that Interstate was paying for $165,000 worth of renovations on his new apartment in the Bronx.

That is when the police commissioner job came open.  Bernie Kerik was one of the candidates with his eight years experience as a police officer.  Edward Kuriansky, the city investigations commissioner, was assigned to oversee background investigations of Kerik and the other candidate, Joseph Dunne.    Kuriansky’s agency was supposed to be semi-independent, but Kerik had coopted it to some extent, appointing friends like Kuriansky to the commission and having them attend his morning meetings.  Kuriansky was a former prosecutor, and he knew Kerik had intervened on behalf of the company suspected of mob ties and that Kerik’s best friend and brother worked for that company.  Kuriansky, however, did not know Interstate was renovating Kerik’s apartment.

Giuliani selected Kurik as his police commissioner, and he served in that capacity for 16 months.  Crime fell, and Kerik enjoyed not only public approval during his tenure but celebrity.   Bernie Kerik adopted the persona of a steady figure after the World Trade Center attack on 911.  He continued to receive good press.  Three years later, after he had withdrawn his nomination as head of Homeland Security, it came to light that Kerik had used an apartment dedicated for weary rescue workers at ground zero for an extramarital affair with his book publisher, Judith Regan.

After Kerik’s three months in Iraq, he spoke at the Republican National Convention. But his candidacy to head Homeland Security lasted only a week.  He withdrew himself, saying he discovered his nanny was in the country illegally and he had not paid taxes on her.

Kerik couldn’t even stay out of trouble after he was indicted in federal court.  U.S. District Judge Stephen Robinson revoked Kerik’s bail when the judge found Bernie had, in apparent hopes of generating sympathy in his trial, leaked information the judge had ordered sealed.  Kerik ultimately pled guilty to eight counts in hopes of receiving a  two or three years sentence, as indicated by the Sentencing Guidelines and the expectations of the prosecutors.      Whoops. The judge gave him four years and said Kerik had violated the public trust immeasurably.   While waiting for his sentencing, Kerik complained that he had not heard from Rudy Giuliani.  Small wonder why.  The wonder is that he overlooked Kerik’s fleas so long.

The Tenth Circuit Court of Appeals has affirmed U.S. District Court Judge Ronald A. White’s dismissal in September, 2007, of a pitiful lawsuit brought by former Ada District Attorney Bill Peterson against author John Gresham and others.  The lawsuit was filed in the Muskogee in the United States District Court for the Eastern District of Oklahoma by Richardson.  Richardson is certainly a capable lawyer, but the journalists noted that he had called a news conference when he filed the lawsuit and “could not be reached” to comment on the affirmance of the dismissal.

Former Pontotoc County District Attorney Bill Peterson filed the lawsuit over John Gresham’s book, “The Innocent Man,” which described Peterson’s conviction of two innocent men based in reliance upon the testimony of one Glen Gore and the evidence of jailhouse “snitches.”  Dennis Fritz, then a schoolteacher, and his friend, Ronald Williamson, a former minor-league baseball player, were the two convicted in Pontotoc County District Court in 1982.
Fritz received a life sentence and Williamson received the death penalty.  Both men were later exonerated by DNA tests in 1999.  Not only were the accused men proven to be innocent, but the prosecution’s star witness, Glen Gore, was proven by DNA evidence to have been the perpetrator of the murder.  He is now serving a sentence of life without parole, tried for murder after the release of Fritz and Williamson.

Gresham’s book details the faulty police and prosecution work that never investigated Glen Gore, that relied on “confessions” that resulted form questionable interrogation of the suspects as well as the reliance on jailhouse informers, known as “snitches.”   Snitches, as every criminal defense lawyer knows, are motivated by presenting as much damaging evidence as possible against whoever is being prosecuted.  Their situation requires them to help the prosecution as much as possible, and they have a motive to lie, have a motive to create false evidence.  Whether they do create false evidence in a given case is difficult for a jury to judge.  A reader of “The Innocent Man” wondered just how much instigation there was from the police and prosecution to obtain the snitch testimony, but it was clear that the prosecution never hesitated in taking it at face value to help their case.

Joining Bill Peterson as co-plaintiffs were former state criminologist Melvin Hett and former Shawnee police officer Gary Rogers.  Defendants in the case were John Gresham, well-known attorney Barr Scheck, Gresham’s publisher, Doubleday Dell Publishing Group and Robert Mayer, author of “The Dreams of Ada,” a nonfiction book about the 1984 murder in Ada, Oklahoma, and the conviction for that murder of Tommy Ward and Karl Fontenot.  Ward and Fontenoy, who are still in prison, were convicted by jailhouse snitch testimony, similar to that used to convict Fritz and Williamson.

This lawsuit never did not appear to have any legs when it was filed because it was based on a claim of libel brought by public officials. This is First Amendment territory, the “free speech” area that courts have repeatedly ruled should remain hands-off to the courts, and a complaint brought by public officials, who have been held to be less deserving of court protection.  The Tenth Circuit Court opinion pointed to an Oklahoma Statute that provides “criticism upon the official acts of any and all public officers” cannot be considered libelous unless a defendant makes a false allegation that official engaged in criminal behavior.

When the lawsuit was filed, Ron Fritz was quoted as saying, “ The only reason [Peterson’s] filing this is he’s trying to wipe the egg off his face because he convicted two innocent men.”  It certainly looks that way.

News stories report that Tiger Woods had a traffic accident backing out of his home in Florida, an estate in Isleworth, outside Orlando.   According to the Florida Highway Patrol accident report, Woods had just pulled out of his driveway when he struck a fire hydrant and then a tree, and Woods said he had cuts, bruising and “right now, I’m a little sore.”

A 911 caller reported an accident in the middle of the night.  “I have a neighbor, he hit the tree.  And we came out here just to see what was going on.  I see him and he’s laying down,” the neighbor reported without naming Tiger Woods.  When the caller was asked by the dispatcher if the “victim” was unconscious, the neighbor stated, “Yes.”  The 911 call goes on with the voice of a woman shouting, “What happened?”  “We’re just trying to get the police here right now, “ the caller says to the woman. “We don’t know what happened.  We’re figuring that out right now.  I’m on the phone with the police right now.”

The Florida Highway Patrol has been asking to interview Woods about the accident.  Woods has just published a statement on his website.  “The situation is my fault, and it’s obviously embarrassing to my family and me.  I’m human and I’m not perfect. I will certainly make sure this doesn’t happen.”

Woods’ statement went on: “Although I understand there is curiosity, the manly false, unfounded and malicious rumors that are currently circulating about my family and me are irresponsible.  The only person responsible for the acccident is me.  My wife, Elin, acted courageously when she saw I was hurt and in trouble she was the first person to help me.  Any other assertion is absolutely false.”  This was published about an hour after Woods’ attorney told the Highway Patrol that for the third straight day Woods would be unavailable to talk to troopers.  Woods said this was a private matter, and he intended to keep it that way.

The Highway Patrol went to Woods’ estate nevertheless. They were met there by Woods’ attorney, who gave then Woods’ driver’s license, registration and insurance as required for such accidents.  The Highway Patrol still does not know where Woods was headed at that time of night, how he lost control of his SUV at such a speed that the air bags did not deploy, and why both rear windows of this Cadillac Escalade were smashed out.  Perhaps the biggest question is if was just a careless mistake, why not speak to state troopers to complete their investigation?

A spokesman for the highway patrol was towed away from the gated community in which Woods lives “for safekeeping.”  Why would the police take Woods’ vehicle from its resting place, which was apparently feet from Woods’ garage?

Besides not wanting to make public what Woods said is a “private matter,” Woods has another reason not to speak to the police about his matter.  Every criminal defense lawyer knows why Woods was well advised to have his lawyer speak for him when the police arrived at his home for a “friendly chat.”  Anything Woods says can and will be used against him in a court of law.  So why should he help the police make a criminal case against him?

Such a case does not have to appear likely.  Certainly, no criminal case appears likely from the sparse facts known.  But who knows how creative the police may become?  Such things have happened before, and that is why Woods’ attorney, informed any interview was optional, exercised the option that excluded any interview.  Why take any other option, why give up one’s Fifth Amendment Rights, just so as to appear one is “not guilty?”

Rumors are circulating that Tiger Woods is seeing some cocktail waitress in New York, and that may be related somehow to this accident.  The waitress is now represented by a Hollywood attorney.  Regardless, if a police interview took place, whatever would be said, would be front page news in 12 hours.  That is another reason Tiger Woods could understandably not want to talk to the police about this accident.  But the first reason is the reason that applies to every citizen who has available Constitutional Rights.