Fordham Law

Experts: Clemens, Edwards trials a case of poor judgment

James Cohen in Newsday, June 24, 2012

Media Source

WASHINGTON -- The government's back-to-back losses in the high-profile criminal trials of Roger Clemens and John Edwards raise questions about the judgment of federal prosecutors in bringing the cases in the first place, legal experts said.

Jurors last week acquitted the former Yankees pitcher of a six-count perjury indictment, just weeks after a jury in Greensboro, N.C., cleared the former presidential candidate of one of six counts of violating campaign finance laws and deadlocked on the rest.

"Both cases were exceptionally weak and should not have been brought," said Jonathan Turley, a George Washington University law professor.

"These cases have undermined the credibility of the Justice Department, not because they were defeats but because of the credibility of the cases themselves and the motivation for bringing them," he said.

Fordham University law professor James Cohen said he's concerned prosecutors are "taking too many chances." He added, "It raises questions about the use of judgment in deciding which cases to bring to trial."

The Justice Department and prosecutors in the cases would not comment for this story.

Losing a case is uncommon for federal prosecutors, who nationally obtain guilty verdicts in 91 percent of criminal trials, according to

Justice Department statistics for 2009, the most recent year available.

The government still wins high-profile cases, such as ex- Goldman Sachs director Rajat Gupta's June 15 insider trading conviction, said Columbia University law professor Daniel Richman, a former federal prosecutor.

Yet Cohen said the Clemens and Edwards trials leave a "bad impression" because of what Turley called "a waste of millions of dollars on cases that had little merit."

Richman raised concerns that prosecutors may have allowed political considerations or the lure of a celebrity target play a role in the decisions to indict.

Clemens' perjury case was referred to prosecutors by a key House committee then led by Rep. Henry Waxman (D-Calif.) after Clemens denied using steroids and human growth hormone at a 2008 hearing.

"Should they take notice when a member of Congress refers [a case] over? Yes. But sometimes you have to say no," Cohen said.

Richman said, "The government needs to think long and hard on which cases they bring, and it does not appear they did so in the Clemens case."

 The Edwards case was initiated by a Republican U.S. attorney in North Carolina. Justice Department officials in the Obama administration told The Washington Post they thought "it would be seen as a bad thing" if they interfered with his case.

But in a filing in the case, the Justice Department denied that the prosecutor indicted Edwards because of a political motives.

Still, Cohen said the Edwards case shouldn't have gone forward. "It was based on a legal theory the government itself thought was flawed," he said.

The two cases shared also key defects, the experts said.

Turley said both relied on the credibility of a single witness that was "deeply flawed."

Richman said, "In both cases, you have a backdrop of disaffection with politicians."

He also said, "Both have in common the skepticism of ordinary jurors about what matters."

In Edwards' trial, Richman said, it was "the idea of political shenanigans on the fundraising side not being taken seriously." In Clemens' trial, he said, it was "the idea of lying to Congress not being taken seriously."