Drawing conclusions as to precise reasons for the result of any particular trial is notoriously difficult and subjective, even for those who sat through the proceeding in the courtroom. But the coincidental timing of the verdicts in three high profile federal criminal trials – the acquittal of Roger Clemens, the effective acquittal of John Edwards and the conviction of Rajat Gupta — provide an opportunity to contemplate potential bases for their different outcomes.
Each case was a single defendant trial, and none of the defendants testified, but the charges and factual circumstances in each case were quite different. The charges against Clemens centered on alleged perjury to Congress in an inquiry regarding the use of performance-enhancing drugs in Major League Baseball. The theory of the Edwards prosecution was that Edwards violated the campaign finance laws because payments by two Edwards supporters directed to Edwards’ mistress constituted campaign contributions in excess of legal limits. The charges against Gupta were insider trading by a corporate board member “tipper” to a hedge fund manager, Raj Rajaratnam.
One likely factor in explaining the differing results is the distinction between crimes that may have little intrinsic gravity in the minds of many jurors versus those that do. The lies alleged against Clemens occurred in legislative hearings of questionable importance that the defense portrayed as amounting to publicity seeking by members of Congress. Edwards was accused of circumventing a regulatory scheme on campaign contributions that many may feel are inherently suspect efforts to impose limits on the chronically unseemly process of fundraising; limits they may believe are often circumvented in myriad more significant ways. Gupta, in contrast, involved claims that well-placed insiders were rigging the public stock markets to their advantage to obtain millions in undeserved profits. Years of prosecutions show that juries are quite comfortable that this is the proper business of federal criminal enforcement, and the 2008 financial meltdown can only have fueled this inclination. For many jurors there is likely room to question whether baseball’s performance-enhancing drug scandal or the sordid details of a political candidate’s extramarital affair are the proper realm for a federal prosecution; not so with insider trading.
Another interesting point of contrast between the two defense wins and the prosecution victory is in the degree of reliance upon admitted participants in wrongdoing, i.e., cooperating witnesses. The Clemens case depended largely on the testimony of Clemens’ estranged personal trainer, Brian McNamee, whose credibility and motives the defense was able to effectively attack in numerous ways. Similarly, the Edwards case turned on the testimony of immunized former campaign aid Andrew Young, who served as the go-between for the money provided to Edwards’ mistress, and it turned out, kept a large sum for himself. Although there was cooperating witness testimony for the government in Gupta, it was much less central; the Gupta case was much more a meticulously constructed circumstantial case.
Other variables that may have had significant impact on the differing results were some key evidentiary rulings. In the Clemens case a defense expert was permitted to testify in substance that McNamee’s handling of critical physical evidence made that evidence wholly unreliable. In Edwards, the jury heard that there was dispute even among election law experts whether the sums at issue constituted campaign contributions. In Gupta, the jury was permitted to hear recorded calls tending to show that Rajaratnam was receiving other confidential information from a board member, but was not permitted to hear other calls the defense claimed pointed to an alternative “tipper.”
In the end, of course, there is only so much one can draw from these rather high level distinctions. Juries are unpredictable, and particularly when the government’s case is not overwhelming, criminal trials will ultimately turn on the peculiar, small details that often don’t make the media reports, and the quirks of a particular jury. The government has won trials in which it faced many of the same hurdles that it did in Clemens and Edwards.
While the government’s decision to proceed is always properly subject to question when it loses at trial, it is also true that the government cannot limit its prosecutions to the sure winners. No broader conclusions regarding the acumen of DOJ’s leadership can fairly be drawn solely from the results of the Clemens and Edwards trials. The result in the Gupta case, however, does support the conventional wisdom that the Manhattan federal courthouse is a difficult place for a white-collar defendant to win at trial.