Barring a retrial for Roger Clemens would hand the former baseball star “an unwarranted windfall” from inadvertent mistakes made during the first case against him, federal prosecutors argued in a brief filed Friday.
The brief came in response to a motion filed by Clemens’ attorneys seeking to prevent a retrial by arguing the government intentionally violated rules imposed by District Judge Reggie Walton, who declared a mistrial July 14 after prosecutors played a video that contained evidence Walton had previously ruled inadmissible.
That evidence included testimony from the wife of former pitcher Andy Pettitte, which suggested that Clemens had talked with Pettitte about using steroids. The video shown by prosecutors – a recording of Clemens’ 2008 testimony before Congress – showed Rep. Elijah E. Cummings (D-Md.) making a reference to the conversation.
The video was strike two for the prosecution, which had also alluded to the conversation during opening statements.
But in their motion, Justice Department attorneys said the video had already been prepared when Walton made his ruling on admissibility, and that they hadn’t looked to see whether a reference might be buried in a question from the congressman.
“The government’s error was a mistake, not misconduct, and certainly not misconduct intended to provoke a mistrial,” prosecutors wrote. “As government counsel informed this court when the video clip mistake occurred: ‘There was no intention to run afoul of any court ruling.’”
A motion hearing on the issue is scheduled for Sept. 2.
.
.
.
.
.
FOR IMMEDIATE RELEASE CRT
FRIDAY, AUGUST 19, 2011 (202) 514-2007
WWW.JUSTICE.GOV TTY (866) 544-5309
REMARKS AS PREPARED FOR DELIVERY BY ASSISTANT ATTORNEY GENERAL THOMAS E. PEREZ
AT THE ANTELOPE VALLEY INVESTIGATION ANNOUNCEMENT
LOS ANGELES
Thank you for joining us today. We are here to announce the expansion of our ongoing civil rights investigation into allegations of discriminatory behavior in the Antelope Valley communities of Lancaster and Palmdale.
The Antelope Valley has undergone a dramatic and remarkable demographic transformation in the past two decades.
In Lancaster, between 1990 and 2010, the population grew over 60 percent from roughly 97,000 to over 156,000 residents. The majority of this growth is attributable to growth in non-white population. Between 1990 and 2010, the percentage of African-Americans increased from 7.2 percent to over 20 percent and Latinos increased from 15 percent to 38 percent.
The rate of population growth in Palmdale was even greater. Between 1990 and 2010, the population grew by approximately 122 percent from about 69,000 to over 152,000 residents. The percent of African-Americans increased from 6.1 percent to almost 15 percent of the population, and Latinos went from 22 percent of the population to 54 percent of the population. African-Americans and Latinos now comprise almost 60 percent of the population in Lancaster, and almost 70 percent in Palmdale.
Across America, equal housing opportunity is not simply a core value; it is the law.
The Civil Rights Division enforces the Fair Housing Act. The Act prohibits discrimination in housing on the basis of race, national origin and other protected categories. This law, which was passed in the immediate aftermath of Dr. King’s assassination, is a cornerstone of our nation’s civil rights enforcement. The promise of America- the promise of freedom and equal opportunity- is possible only when we have the freedom and opportunity to live where we choose.
Earlier this summer, the Department of Justice opened up an investigation of the city of Palmdale, City of Lancaster, and the Housing Authority of Los Angeles County pursuant to our authority under the Fair Housing Act.
The investigation was a response to allegations that the cities and the housing authority have engaged in a systematic effort to discriminate against African American and Latino families, including those who hold Section 8 vouchers. In particular, we are investigating serious allegations of systematic harassment of African-American and Latino residents of these communities, including whether certain leadership in these communities adopted a policy or practice designed to drive certain residents out of the community. We have drawn no conclusions, and the investigation remains active and ongoing.
Based on our preliminary review, we have decided to expand our investigation to also focus on allegations that the Lancaster and Palmdale stations of the LASD are engaged in a pattern or practice of discrimination on the basis of race or national origin. Our determination was made after careful consideration of data and other evidence, including extensive conversations with individuals in Lancaster and Palmdale, as well as representatives from community organizations.
Neither Lancaster nor Palmdale have their own police forces. They contract with the Los Angeles Sheriff’s Department. In the matters we are investigating, Deputy Sheriff’s were frequently working alongside city officials.
We are analyzing arrest data in the Palmdale and Lancaster stations. These stations appear to have disproportionately high rates of misdemeanor and obstruction arrests compared to the rest of Los Angeles County. While the rates of felony arrests are similar to elsewhere in the county, the two cities appear to have unusually high rates of misdemeanor arrests, and particularly high rates of arrests of African Americans.
In interviews with affected individuals and community representatives, we heard troubling accounts of allegedly unjustified stops and searches. We will be investigating whether there is a pattern of racially motivated stops and arrests.
We intend to peel the onion to its core, and gain a precise understanding of what is happening in these two areas.
We will also examine allegations that, as part of any discriminatory policing, LASD deputies have tried to identify certain categories of Section 8 tenants during routine traffic violations and routine police business. We will investigate allegations that LASD has conducted warrantless searches of African-American families’ homes under the auspices of the housing authority compliance inspections. During our investigation, we will determine whether such actions are part of a pattern or practice of harassing or intimidating African American families in Lancaster and Palmdale.
The investigation of the LASD is being conducted pursuant to our authority under Section 14141, which is the police reform provision enacted in the aftermath of the Rodney King incident that gives the Department of Justice the authority to investigate patterns or practices of the deprivation of constitutional rights or violations of federal law.
The Civil Rights Division’s Special Litigation Section conducts these civil pattern or practice investigations to determine whether there are systemic problems in a police department’s practices and procedures that are resulting in the violation of people’s basic rights.
Over the last 15 years, the Division has brought in teams of seasoned attorneys, staff and law enforcement experts to work collaboratively with police departments and communities across the country to address systemic problems and identify and implement comprehensive solutions that accomplish three goals: 1) reduce crime, 2) protect the rule of law, and 3) enhance public confidence in law enforcement. These goals are not mutually exclusive; they go hand in hand.
Our investigation has been and will continue to be thorough, fair, independent, and it will also be collaborative. We will engage a wide array of community stakeholders. I personally informed Sheriff Baca of our investigation, and from the outset he has been forthcoming and cooperative. I appreciate his cooperation, and we look forward to learning from the sheriff’s department and community stakeholders.
Our goal is clear: to find the truth and figure out what is happening in Lancaster and Palmdale.
Throughout this process, we will provide real time feedback to the Department, so that if there is a good idea that can be implemented immediately, LASD has the opportunity to do so. Our lines of communication have been and will continue to be open; our goal is to fix problems, not fix the blame, and we view the LASD and the community as partners in this important effort.
At the conclusion of our careful review, we will provide you with a thorough and independent assessment of our findings. We have not drawn any conclusions at this time; rather, we will follow the facts where they lead us. If we identify problems, we will work collaboratively with all stakeholders to fix the problems.
We have the greatest respect for the members of the LASD, and all law enforcement officials, who work tirelessly to protect their communities. I am optimistic that, working together, we can ensure that the LASD is providing the citizens of Lancaster and Palmdale with the services and protection they deserve, while also respecting their constitutional rights.
We look forward to Sheriff Department’s cooperation as the Civil Rights Division conducts its independent investigation, and hope to work collaboratively to forge comprehensive solutions to any problems that we may find.
###
Hackers from the group Anonymous have released emails and data taken from a Texas-based defense contractor with the Pentagon and FBI that specializes in developing unmanned aerial vehicles and drones, the Associated Press reported.
Vanguard Defense Industries LLC’s chief executive Michael Buscher told the AP that the emails belong to the company’s senior vice president Richard T. Garcia, who formerly worked as an FBI agent.
Data from Vanguard Defense Industries was revealed in a post on tor2web.org and publicized on the hacker group’s AnonymousIRC Twitter account, according to the International Business Times.
Anonymous claimed in a statement to have released 1 gigabyte of private emails and documents from the Garcia’s account.
But Buscher said Friday that the released material didn’t contain anything “sensitive.”
According to Anonymous’ statement, the emails contained information about the company’s new “ShadowHawk drones,” which are used by military and law enforcement companies, as well as “internal meeting notes and contracts, schematics, non-disclosure agreements, personal information about other VDI employees and several dozen ‘counter-terrorism’ documents classified as ‘law enforcement sensitive’ and ‘for official use only.’”
Anonymous offered no reason for the attack but credited it as part of the group’s “F**k FBI Friday” campaign, which has hit other big name companies with ties to military or law enforcement agencies such as Booz Allen Hamilton Inc. and Monsanto Co.
Former FBI agent Adrian Johnson has been indicted by a Prince George’s County, Md. grand jury on nine counts, including vehicular manslaughter and driving under the influence, for a February head-on collision that killed 18-year-old Lawrence Garner Jr., The Washington Examiner reported.
At the time of the incident Johnson had recently transferred to the Newark, N.J. field office after six years with the agency and was set to begin a protection assignment for either FBI Director Robert Mueller or Attorney General Eric Holder. He was suspended and then dismissed shortly after the crash.
Johnson, who was off-duty and in his own vehicle when he drove into oncoming traffic and collided with Garner, was allegedly speeding and registered a blood-alcohol level of over three times the .08 legal limit, according to the county State’s Attorney’s Office.
Garner was pronounced dead at after being taken to a local hospital. His passenger, Robert Mitchell II, 19, sustained critical injuries, but recovered.
The Justice Department announced Thursday that it’s investigating the Los Angeles County Sheriff’s Department in connection with allegations of discrimination against minority residents of government-subsidized housing in the Antelope Valley, the Los Angeles Times reported.
The probe comes after civil rights lawyers and activists have accused elected leaders in Lancaster and Palmdale of trying to drive out black and Latino residents in the historically white area.
Residents began complaining about surprise inspections of Section 8 housing – or government-subsidized housing – to check that residents met the terms of their assistance. But checks often involved armed sheriff’s deputies, who would return with search warrants if tenants didn’t consent to a check of their home.
Activists allege that authorities tried to intimidated residents.
The department’s civil rights probe will focus on Sheriff’s Department stations in Lancaster and Palmdale, Sheriff’s Department spokesman Steve Whitmore told the Times. DOJ investigators will look for a “pattern-and-practice” of misconduct, which generally means there are multiple allegations of civil rights abuses in one area.
“We welcome the investigations. The sheriff has nothing to hide,” Whitmore told the Times.
But this is hardly the first time the area has faced allegations of minority misconduct.
Earlier this year, civil rights attorneys from the National Association for the Advancement of Colored People sued leaders in Lancaster and Palmdale, saying that up to 200 minority families lost federal housing assistance each year in Antelope Valley after unexpected compliance checks.
But city leaders argued that inspections have increased because of concerns about crime in the area, and Lancaster Mayor R. Rex Parris told the Times that crime tends to “cluster around Section 8 housing.”
The discovery process used to be a great deal easier for the Justice Department.
Attorneys would sift through volumes of material to determine what should be turned over to the opposing side.
But new technology means that less and less is done on paper and that’s presented challenges for DOJ officials, who are struggling with ways to manage electronic evidence, such as e-mails and text messages. It’s led to accusations that the government has deliberately withheld evidence and even public admonishments by federal judges.
“I want the court to know that we’re frustrated too,” an Assistant U.S. Attorney in Alabama, Stephen Feaga, told a magistrate judge in Montgomery, Ala., in March during a high-profile public corruption prosecution of lobbying related to bingo gambling. “This is a case where there was more electronic discovery and transmission of data than any case I’ve ever seen … and it created unique problems for us, starting with discovery.”
Particularly during the discovery phase of litigation, modern attorneys commonly need to sort through millions of emails with attached documents or text message logs with metadata – information telling when or where the log was created, for example – all while withholding privileged information and complying with complex legal rules.
In response, the government in recent years has made a “full-court press” developing so-called e-discovery skills to close the competency gap, said Sarah Michaels Montgomery, senior litigation counsel for e-discovery in the Associate Attorney General’s office.
Montgomery chairs the department’s recently established Civil E-Discovery Committee, a team of legal and technical experts who coordinate e-discovery training and assistance across the department’s civil litigation groups. She also regularly teaches e-discovery courses at the department’s National Advocacy Center in South Carolina.
“It’s a real challenge,” Montgomery said. “We’ve done a series of initiatives in the last two years … but the law continues to develop in ways that are very unsettling for large organizations and law firms because the United States [government] doesn’t turn on a dime, and to the extent that the law does change, it is very frustrating for the government.”
While the Federal Rules of Civil Procedure were amended back in 2006 to deal with e-discovery in civil cases, Montgomery said the government waited for the e-discovery field to develop a bit before starting to educate attorneys and standardize software.
“The challenge is the case law, not the rules,” she said. “It takes some time for things to develop in a way that government can respond … and we need to be careful before building infrastructures with taxpayer money.”
But government has taken the plunge. Last year, the department requested about $5 million to strengthen its cadre of tech-savvy lawyers in the Civil and Environmental and National Resources divisions, as well as establish an e-discovery team in the Executive Office for U.S. Attorneys.
And a May 2011 U.S. Attorney bulletin introduction written by Associate Attorney General Thomas Perrelli outlined efforts to establish e-discovery training programs, best practices and designated resource liaisons for each U.S. Attorney’s office.
And that’s just the civil side. Andrew D. Goldsmith, National Criminal Discovery Coordinator for the DOJ, said establishing e-discovery procedures for criminal matters is even more critical because no rules exist to guide criminal attorneys.
That void has created an opportunity for the department to lead, Goldsmith said, by helping to develop an unprecedented protocol for dealing with electronically stored information, or ESI, in criminal cases. Goldsmith added that he and others from the department presented a draft of the protocol at the 2011 9th Circuit Judicial Conference in Carlsbad, Calif., this week.
“I can’t emphasize enough how groundbreaking this effort is,” Goldsmith said. “We’re really trying to demystify things and try to make sure the ESI tsunami … doesn’t overrun the system.
“We’re being extremely proactive,” he added.
But Charles A. Intriago, founder the Association of Certified E-Discovery Specialists and a former prosecutor in the U.S. Attorney’s office for the District of Southern Florida, said the department is playing catch-up to the private sector, which he said better anticipated the increasing use of ESI.
“The DOJ is behind the eight ball,” Intriago said. “There’s no element in the Justice Department that doesn’t have to face e-discovery. It’s a very costly operation, and the government is outmanned and outgunned.”
Several high-profile cases illustrate the DOJ’s struggles with e-discovery. In June, attorneys for the aerospace giant Honeywell International brought misconduct allegations against the DOJ in an ongoing false claims suit, accusing the department of failing to turn over some 120,000 documents, including some that could have aided the company’s defense.
District Judge Richard W. Roberts appointed a federal magistrate judge to supervise DOJ compliance with discovery obligations in the case last week, and still could impose monetary sanctions on the government.
In another recent case, the DOJ’s Public Integrity Section encountered problems with discovery in the corruption prosecution of several Alabama state lawmakers. Misconduct allegations culminated in April at an explosive hearing before Magistrate Judge Wallace Capel Jr., who said he would consider sanctioning DOJ attorneys after they failed to turn over emails in an acceptable software format.
But others say the DOJ’s struggles are right in line with the broader legal community.
“The surprising thing isn’t that people screw it up; the surprising thing is that people get it right at all,” said consultant George Socha, co-founder of the Electronic Discovery Reference Mode, which develops guidelines and standards for e-discovery. ”I don’t think the DOJ is any better or any worse off than anyone else out there. They’re all still trying to figure it out.”
Even the largest law firms can only find a few dozen lawyers with e-discovery expertise, Socha said, meaning everyone in the field is understaffed and struggling to deal with demand for electronic document management.
“And judges, for the most part, don’t know anything about electronic discovery,” he said. “By the time it gets to them, both parties are whining and complaining about the other side, and as a judge, you just don’t want to hear this anymore.”
Both Goldsmith and Montgomery said the department has been working with judges through the Federal Judicial Center to improve understanding of e-discovery.
But even establishing e-discovery rules and procedures isn’t a panacea, said Michele Lange, director of Discovery Project Management at the legal consulting group Kroll Ontrack Inc.
Part of the current confusion on the civil side comes from a purposeful ambiguity that was written into the rules to allow for advances in technology, Lange said, adding that rule makers don’t want to handicap the system by getting too specific.
“Technology moves at light speed while rule-making moves at the speed of a tortoise,” Lange said. “It’s evolving faster than the litigants can keep up, faster than the judges can keep up … and certainly faster than the government can keep up. And that’s why having a solid expert in your corner is really critical.”
Two men pleaded guilty Thursday to federal hate crime charges after they allegedly kidnapped, assaulted and branded a swastika on the skin of a 22-year-old, developmentally disabled Navajo man from New Mexico, the Justice Department announced.
Paul Beebe and Jesse Sanford of Farmington, N.M., were indicted by a grand jury in November 2010 for violating the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 – the first defendants ever charged under the federal law.
Beebe pleaded guilty to violating the Shepard/Byrd Act, and Sanford pleaded guilty to conspiracy to commit a violation.
A third defendant involved in the incident, William Hatch, pleaded guilty to conspiring to commit a hate crime in June.
During a plea hearing at District Court in Albuquerque, Beebe and Sanford described how they took the victim to Beebe’s apartment, drew on his skin with markers and then branded him with a heated wire hanger in the shape of a swastika, according to a DOJ release.
The men also defaced the victim’s body with various white supremacist and anti-Native-American symbols, including shaving a swastika in the back of his head and using markers to write the words “KKK” and “White Power” inside the shaved area.
The entire incident was recorded by a cell phone so that Beebe and Sanford could later play back for law enforcement a coerced statement from the victim agreeing to the acts, the men said.
During a press conference, Assistant Attorney General Thomas Perez suggested the case was the first of many successes for the new Shepard/Byrd Act, which also expanded prosecutors’ power to go after crimes relating to a person’s sexual orientation, gender identity or disability.
“Incidents like this have no place in our nation in 2011,” Perez said in a prepared statement. “More than 80 investigations have been opened under the new law, and we will continue our efforts to aggressively enforce it.”
They weren’t “promoted,” they were “laterally transferred.”
That’s what the Bureau of Alcohol, Tobacco, Firearms and Explosives said on Wednesday to rebut reports that it had promoted three supervisors involved in Operation Fast and Furious.
Former Field Operations Deputy Assistant Director William G. McMahon and Phoenix Field Office special agents William D. Newell and David Voth, three key supervisors in the Phoenix-based operation, were reassigned “from operational positions and moved into administrative roles, they were not promoted,” the ATF said in a statement.
The agency added that the supervisors didn’t receive salary increases or assume positions with greater responsibility and none of the documents announcing the transfers described them as promotions.
The Los Angeles Times first reported the personnel switch Tuesday and defended its reporting the next day, saying that three ATF employees had characterized the moves as promotions on Monday, before the statement was released. It also cited an announcement sent out by ATF acting Director Kenneth E. Melson that praised McMahon for the “skills and abilities” he demonstrated throughout his career.
ATF public affairs didn’t return calls for comment that day, the Times reported.
But on Wednesday, the ATF said that “media reports inaccurately characterized personnel changes … as promotions.”
ATF’s statement also followed questions from the House Oversight and Government Reform Committee, which had asked the agency to clarify whether the men were promoted.
McMahon was reassigned to a long-vacant position with the Office of Professional Responsibility and Security Operations on May 13, the release said.
Newell, who had originally been selected as an agency attaché in Mexico City, was instead moved on Aug. 1 to the Office of Management to assist with investigations into Fast and Furious. And Voth was transferred to a headquarters position as branch chief for the ATF’s tobacco division.
A former Jackson, Miss., U.S. Attorney known for prosecuting a high-profile cold cases from the civil rights era and a feud with a judge, has died, the Associated Press reported.
Dunn Lampton, 60, passed away Wednesday evening, according to former acting U.S. Attorney Donald Burkhalter, one of the attorneys who worked in the Mississippi office after Lampton retired in 2009.
A George W. Bush appointee in 2001, Lampton gained fame for the prosecution of suspected Ku Klux Klansman Ernest Avants and James Ford Seale, as well as hundreds of fraud cases after Hurricane Katrina.
Seale died earlier this month in prison, where he has resided since his conviction in 2007 on two counts of kidnapping and one count of conspiracy to commit kidnapping connected with the 1964 deaths of two 19-year-old black men, Henry Hezekiah Dee and Charles Eddie Moore.
Coroner Sharon Grisham Stewart told local station WAPT that Lampton died of natural causes at Baptist Hospital in Jackson.
In recent years, Lampton became embroiled in a feud with a Mississippi Supreme Court justice. Earlier this year, the U.S. Court of Appeals for the 5th Circuit ruled that Lampton did not enjoy immunity from being sued by the ex-judge, Oliver Diaz Jr.
Diaz, who had served in the Mississippi House of Representatives as a Republican, was appointed by Democratic Gov. Ronnie Musgrove in 2000 to fill an unexpired term on the state’s high court. He later ran for election and won a full eight-year term on the court. But in 2003 Diaz was indicted on bribery and mail fraud charges in a case prosecuted by Lampton.
Diaz was acquitted in 2005. Soon afterward, he was indicted on tax-evasion charges. He beat those charges also, although his wife, Jennifer, pleaded guilty to tax charges.
Lampton then filed a complaint against Diaz with the Mississippi Commission on Judicial Performance, which investigates claims of judicial misconduct. As part of his complaint, Lampton submitted some of the Diaz couple’s tax information, prompting the couple to sue Lampton for invasion of privacy.
Lampton contended he should enjoy immunity because he was fulfilling his duties as prosecutor. The district court rejected that contention, and so did the Circuit Court. In its opinion, it said Lampton was merely a “complaining witness” before the judicial commission, not a prosecutor. Furthermore, the Circuit said, “A prosecutor does not have carte blanche to do as he pleases with the information he can access.”
A former Jackson, Miss., U.S. Attorney known for prosecuting a high-profile cold cases from the civil rights era and a feud with a judge, has died, the Associated Press reported.
Dunn Lampton, 60, passed away Wednesday evening, according to former acting U.S. Attorney Donald Burkhalter, one of the attorneys who worked in the Mississippi office after Lampton retired in 2009.
A George W. Bush appointee in 2001, Lampton gained fame for the prosecution of suspected Ku Klux Klansman Ernest Avants and James Ford Seale, as well as hundreds of fraud cases after Hurricane Katrina.
Seale died earlier this month in prison, where he has resided since his conviction in 2007 on two counts of kidnapping and one count of conspiracy to commit kidnapping connected with the 1964 deaths of two 19-year-old black men, Henry Hezekiah Dee and Charles Eddie Moore.
Coroner Sharon Grisham Stewart told local station WAPT that Lampton died of natural causes at Baptist Hospital in Jackson.
In recent years, Lampton became embroiled in a feud with a Mississippi Supreme Court justice. Earlier this year, the U.S. Court of Appeals for the 5th Circuit ruled that Lampton did not enjoy immunity from being sued by the ex-judge, Oliver Diaz Jr.
Diaz, who had served in the Mississippi House of Representatives as a Republican, was appointed by Democratic Gov. Ronnie Musgrove in 2000 to fill an unexpired term on the state’s high court. He later ran for election and won a full eight-year term on the court. But in 2003 Diaz was indicted on bribery and mail fraud charges in a case prosecuted by Lampton.
Diaz was acquitted in 2005. Soon afterward, he was indicted on tax-evasion charges. He beat those charges also, although his wife, Jennifer, pleaded guilty to tax charges.
Lampton then filed a complaint against Diaz with the Mississippi Commission on Judicial Performance, which investigates claims of judicial misconduct. As part of his complaint, Lampton submitted some of the Diaz couple’s tax information, prompting the couple to sue Lampton for invasion of privacy.
Lampton contended he should enjoy immunity because he was fulfilling his duties as prosecutor. The district court rejected that contention, and so did the Circuit Court. In its opinion, it said Lampton was merely a “complaining witness” before the judicial commission, not a prosecutor. Furthermore, the Circuit said, “A prosecutor does not have carte blanche to do as he pleases with the information he can access.”
