Archive for the ‘Prosecution’ Category

Is Governor Spitzer’s Sex Crime an Abuse of Office?

Sunday, March 16th, 2008

Soon to be former New York Governor Eliot Spitzer has been compared several times on TV news to James “Jim” McGreevey, the former governor of New Jersey.  However, this is not a good analogy.

It is generally reported that Jim McGreevey left office three months after admitting that he had had an extramarital affair with a male employee. This is probably because McGreevey announced at a press conference, “My truth is that I am a gay American.” He also said that he “…engaged in an adult consensual affair with another man” (Golan Cipel).  If this was the extent of the issue, it would truly be a private affair and would not have caused him to resign as governor of New Jersey.

The issue behind the issue was that Jim McGreevey used his power as governor to appoint Golan Cipel, the other man with whom he had an extramarital homosexual relationship, to the post of Homeland Security Adviser.  Golan Cipel is not a US citizen and could not gain security clearance from the US federal government.  Did Golan Cipel blackmail the governor?  Did the governor simply want to provide an inappropriate favor?  There are many inappropriate reasons that could have caused the governor to give the post to Golan Cipel.

On the other hand, Governor Eliot Spitzer did not abuse his office.  Governor Spitzer had a private sexual encounter with an escort. Unfortunately for the governor, paying for a private sexual encounter with an escort is a crime and a crime for which he so publicly prosecuted two escort services.  This is why many people think that he’s just getting what he deserved.  Paying for a sexual act with an escort is a minor crime which is rarely prosecuted.  Even this may not have been enough to cause Governor Spitzer to resign.

Governor Spitzer also tried to hide the transfer of money by wiring money from his bank account to three shell corporations.  Governor Spitzer probably thought that no one would ever look at his bank account, because he was the author of a law providing increased reporting requirements by banks for potentially suspicious money transactions.

Governor Spitzer relentlessly pursued many powerful people.  It is entirely possible that one of them requested the bank to look at his account to see if there were any interesting transactions that could be reported.  While it was the suspicious transaction that brought this entire episode to light, charging the governor with a crime with relation to hiding payments to a prostitute is an abuse of the legal system.  Even though some people seem to think that Governor Spitzer accused the legal system when he was the Attorney General, that does not mean that the system should be abused to prosecute the soon-to-be former Governor for what was really a minor sex crime.

A sex crime lawyer lawyer should normally be able to plea bargain an encounter with an escort down to a violation with a fine.

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Why Did Roger Clemens Testify?

Friday, February 15th, 2008

I was watching CNN yesterday waiting to see Roger Clemens testify. I was stunned when Committee Chairman Henry Waxman stated in his opening statement that he intended to conclude the hearings without the testimony of Roger Clemens. Chairman Waxman said that he agreed to continue the hearings only because Roger Clemens’ lawyers begged for him to have a chance to make a statement.

If subpoenaed, Roger Clemens should have decided to take the 5th Amendment privilege against self-incrimination. Even if innocent of a charge of taking a banned substance or drug, Roger Clemens could be convicted of perjury for lying. Roger Clemens maybe experienced on the ball field, but not in this arena. Even if innocent, it’s very easy for him to fall into a trap. Don’t forget that Martha Stewart went to prison for perjury because she lied to federal investigators about facts which were not even a crime.

Why would his lawyers be so determined to request an appearance? They probably were not. It was probably Roger Clemens who demanded that his lawyers request that he be allowed to testify. Roger Clemens probably thought that he needed to defend his reputation in this very important in public forum. Only a client could believe that some good could come out of his testimony. A client like Roger Clemens, used to intimidating players and being in control on the baseball field, probably thought that he could control the direction of the hearing and opinions of the public. His lawyers must have advised him of all of the reasons he should not request an appearance, but he most likely insisted.

Roger Clemens’ lawyers would have to either comply or withdraw from representation. I can not criticize a lawyer for refusing to withdraw when a client does not comply. Every lawyer, including myself, has had cases which we have declined to take; cases we have withdrawn from; and cases which we have considered withdrawing from but did not. After all, why should I fire myself because my client does not agree with me?

Roger Clemens had absolutely nothing to benefit by testifying, either legally or or with regards to public relations. If Roger Clemens had not appeared, he could continue to maintain that he did not take illegal steroid drugs and claim that it was unfair for the hearings to take place without his chance to make a statement. Most people will want to believe him. Now, he cannot say that.

By appearing today at the hearings, he opened up himself to a severe, detailed and condemning opening statement by Committee Chairman Henry Waxman on national TV for everyone to see. The opening statement alone, brought up facts and details which many people were probably not aware of, including myself. Before, he was a star who was accused of something which he denied. After listening to Chairman Henry Waxman, he sounded very guilty.

Besides the publicity nightmare that surely did not go the way Roger Clemens thought it would, there are the legal implications although that might actually be his smallest problem. There has been talk that even if he is convicted of perjury, he could be pardoned by President Bush because he is a friend of the president.

If Roger Clemens is found to have lied and convicted of perjury, that would just lead to worsening publicity further damaging his reputation. In summary, nothing good could have come of his testimony. Roger Clemens had everything to lose and nothing to gain by testifying.

Thoughts of a drug crime lawyer
Philip L. Franckel, Esq.

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Barry Bonds Indictment – How to Defend?

Friday, November 16th, 2007

Ryan Smith, a sports attorney and host at BET TV, said on CNN today that the indictment of Barry Bonds seemed to have come out of left field. He said that he was surprised because it has been two years since the investigation started.

It is not uncommon for FBI investigations to take two or three years. All of the FBI investigations I am familiar with have taken three years before indictment. They apparently take their time and work methodically to assure a solid case and likelihood of a conviction.

It should not be forgotten that it is relatively easy to indict someone. A grand jury almost always follows the lead of the prosecutor and returns an indictment.

In an attempt to make district attorneys more accountable for their actions, then New York State Chief Judge Sol Wachtler proposed that the state eliminate the grand jury as a method of bringing criminal indictments. In a story published in the New York Daily News by Marcia Kramer and Frank Lombardi, to describe the influence that district attorneys have on a grand jury, Justice Wachtler said, “by and large” a district attorney could get a grand jury to “indict a ham sandwich.”

Proving guilt at a criminal trial is entirely different and substantially more difficult. It is alleged that there is new evidence that Barry Bonds tested positive in a drug test, but Barry Bonds was not indicted for using illegal drugs. In 2006, prosecutors announced that a grand jury would not indict him for using illegal drugs.

Barry Bonds was indicted on four counts of perjury and one count of obstructing justice for lying to a federal grand jury about his use of illegal drugs. Like everything else in life, this changes everything. On one hand, it may be easier to obtain a conviction for lying, while on the other hand, it provides new defense opportunities.

Barry Bonds’ defense attorneys have their work cut out for them, but they have a lot to work with. First of all, the alleged positive result of a drug test for steroids can be attacked and then there are other defense possibilities. For all we know, Barry Bonds may have thought that he was getting vitamin B12 injections.

If any drug lawyers want to post their comments with different defense theories and how they would proceed, please do so.

Philip L. Franckel, Esq.
Drug Lawyer

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Charge OJ with kidnapping. Good idea?

Wednesday, November 14th, 2007

Prosecutors charged OJ with kidnapping after his arrest for an alleged sports memorabilia heist in Las Vegas. Today, at a preliminary hearing, a judge ruled that prosecutors presented sufficient evidence for OJ to stand trial on all charges including kidnapping.

How are prosecutors able to charge OJ with kidnapping when he tried to recover his sports memorabilia which he claims was stolen from him? You might ask, it sounds like robbery or armed robbery, where does kidnapping come from? He couldn’t have kidnapped anyone, could he? After all, he didn’t force anyone to go anywhere. He didn’t even take anyone anywhere.

Prosecutors alleged that OJ lured the alleged victims to the hotel room. Although OJ may not have taken anyone anywhere, forcibly or not, it is alleged that he brought them to the scene of the alleged crime where they would not have gone if not for his actions. It is the movement under false pretenses for the purpose of committing a crime that could be considered a kidnapping. Apparently, today, the judge agreed.

The bigger question is whether or not the prosecutor should have charged OJ with kidnapping, even if they would be allowed to bring him to trial for kidnapping. I’m sure that the prosecutor’s office spent a considerable amount of time examining the advantages and the disadvantages of charging OJ with kidnapping.

Of course, the advantages are that they could be successful in proving kidnapping which would result in a substantial sentence. Adding a charge of kidnapping also provides greater leverage during negotiations for a plea bargain.

The disadvantage is that members of the jury could form the belief that the prosecutor is overreaching with the charge of kidnapping and that the prosecutor has some ulterior motive. If the prosecutor has an ulterior motive, that would imply that there is no real substance to the kidnapping charge. Coming to that conclusion, a juror could form the question as to whether there is any substance to any of the other charges.

So the question is, what would you do if you were the prosecutor? Would you feel that a charge of kidnapping is justified or is overreaching? Would you go all out and charge OJ with kidnapping, taking the risk that you could alienate jurors? or would you forget about the kidnapping charge to eliminate the risk of alienating jurors?

Please leave your comments.

Philip L. Franckel, Esq.
Criminal Lawyer

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