Backseat Prosecuting from a Jury Box

I wish I could tell you that I've been busy. I have, but I can't talk about it because of forms and paperwork.

I also wish that meant that the things I can't tell you are interesting. They aren't.

So, here's what I can say... juries are the worst.

Take, for example, the government's case against Roger Clemens for lying in front of a congressional hearing on drug use in baseball. I don't follow sports at all. I don't care about drugs and doping and whatever else is going on. That either makes me the WORST person to be talking about this or the BEST! Worst because I have no background and best because I can look at the facts without letting things like sports pride and fame get in the way.

Clemens lied. He was asked questions. He answered with things that were not true. Things he knew were not true. That is pretty much what we around here call perjury. And yet one jury failed to come to a verdict and the second one acquitted the guy.

Is it because the government couldn't prove the case? Because Clemens was innocent? Nope, apparently it's because the jurors didn't like the fact that Congress called Clemens to testify in the first place. Jurors in the trial are saying that they didn't like the case from the start because the didn't think it was something the DOJ should be prosecuting and that Congress shouldn't have been investigating steroids at all.

Really?

There is this common misconception about government that there are limited resources and that these investigations and prosecutions are zero-sum games. They aren't. The fact that Congress held hearings on drugs in baseball didn't prevent them from getting other work done. They're congress. They weren't going to get anything done anyway. And the DOJ's prosecution of Clemens didn't mean that they opted against prosecuting some terrorist or drug kingpin. They can balance multiple cases, especially since 95% of them end up in pleas. Most of the cases never make the paper because they are worked out in conference rooms instead of courtrooms. The cases that do end up in court tend to be weaker ones (the strong cases plea out) like Clemens or the John Edwards trial. People see these cases on the news and don't hear about all the other cases the DOJ worked out and then assume that this is all they do.

If the Clemens and Edwards juries think that they are sending the message that the DOJ needs to focus on more "criminal" feeling crimes, it's a message that doesn't need to be sent. Just because these cases with famous figures make the front page doesn't mean that there aren't many other cases, like the Gupta insider trading case, which don't make as big an impression because they involve names that aren't well known and fact patterns that you need a degree in accounting to understand.

The only message that is being sent is that it is okay to break the rules as long as you're famous.

The final lesson is that Prosecutor's in these cases might do well to talk about the elephant in the room. Instead of ignoring the fact that many people find these types of crimes (perjury, campaign finance, even insider trading) to be less worthy of prosecution, winning the case might rest on convincing the jury not only that the defendant is guilty, but that the case should have been brought in the first place.