Fascinating. If only we were talking about a good objection. The words “compound and complex” never left Bennett’s lips. This is inapplicable.
BZZZT!
Again, interesting but completely inapplicable to our current situation.
Third verse, same as the first.
The claim of yours that needs defending is that by simply interrupting Bennett’s objection as to whether the witness could remember the definition, Bennett preserved a COMPLETELY DIFFERENT OBJECTION. He did not. Bennett never raised the “complex and compound” objection, never gave the trial court an opportunity to cure the error, and thus cannot claim it on appeal, except as plain error or as part of an ineffective assistance claim.
Yes, never left Bennett’s lips because the judge cut him off, but it was apparent from the context of possibly not understanding and keeping in mind the whole definition, and in such a situation, where it is apparent from the context, you do not need to use the formal language. If you would like a citation, I suppose I could go look for one, let me know. Frankly, I don’t know many lawyers who would continue arguing after a judge interrupts. But is sounds to me like you agree that if he had used the magic words “compound and complex” that the objection should have been sustained.
I looked fairly rigorously for a judge interrupting and overruling, but could not find such a case affirming or denying or dealing with the issue. If you’ve got one, I’ll be happy to read it.
Here’s where the judge disallows the definition in question, starting on page 25. The portions of the deposition before page 25, and I presume continues onto page 25, arguing over the appropriateness of the definition are redacted and apparently not available to the public. Why this did not appear in the Starr report or elsewhere is not clear, but it is emphatically clear that Bennett has been talking about the definition and exactly why it is unfair and making my point about breaking it down to specific conduct. Magic words are not necessary under the law as long as the nature of the grounds are understandable from the context:
TEXT STARTS ON PAGE 25
MR. FISHER: Yes, Your Honor. What I’m trying to do is avoid having to ask the president a number of very salacious questions and to make this as discreet as possible. This definition, I think the Court will find, is taken directly from Rule 413, which I believe President Clinton signed into law, with the exception that I have narrowed subpart one to a particular section, which would be covered by Rule 413, and I have that section here to give the president so that there is no question what is intended. This will eliminate confusion, not cause it.
MR. [ROBERT] BENNETT [the president’s attorney]: Your Honor, I have no objection where the appropriate predicates are made for them to ask the president, did you know X, yes or no, what happened, what did you do, what didn’t you do. We are – we acknowledge that some embarrassing questions will be asked, but then we all will know what we’re talking about, but I do not want my client answering questions not understanding exactly what these folks are talking about.
Now, Your Honor, I told you that the president has a meeting at four o’clock and we’ve already wasted twenty minutes, and Mr. Fisher has yet to ask him first factual question.
JUDGE [SUSAN WEBBER] WRIGHT: Well, I’m prepared to rule, and I will not permit this definition to be understood. Quite frankly, there’s several reasons. One is that the Court heretofore has not proceeded using these definitions. We have used, we’ve made numerous rulings or the Court has made numerous rulings in this case without specific reference to these definitions, and so if you want to know the truth, I don’t know them very well. I would find it difficult to make rulings, and Mr. Bennett has made clear that he acknowledges that embarrassing questions will be asked, and if this is in fact an effort on, on the part of Plaintiff’s Counsel to avoid using sexual terms and avoid going into great detail about what might or might not have occurred, then there’s no need to worry about that, you may go into the detail.
MR. BENNETT: If the predicates are met, we have no objection to the detail.
MR. Fisher: Thank you, Your Honor.
JUDGE WRIGHT: It’s just going to make it very difficult for me to rule, if you want to know the truth, and I’m not sure Mr. Clinton knows all these definitions, anyway.
Why this long colloquy between pages 4 and 25 are missing (the CNN transcript at http://www.cnn.com/ALLPOLITICS/1998/03/13/jones.v.clinton.docs/clinton/ appears to the most complete) is not clear, but it’s pretty clear that Bennett has objected and the judge agrees that it will not permit this definition to be understood and then later says that she doesn’t think that Mr. Clinton knows all the definitions.
What’s a horny boy to think? Of course, “the definition” isn’t fair. Of course Bennett objected and fully discussed his objection, the judge agreed, and then apparently let the plaintiff do it anyway.
Can you base a perjury conviction on that? Of course not. And Starr knew it. He didn’t want to lose a big legal case when he had nothing to gain politically, and the whole thing was about politics from the get go. While there may have been cause for someone untainted to investigate, Starr was never doing that: he was pursuing a political vendetta with his prosecutorial authority and bottomless war chest. It was nothing short of the most disgusting episode of abuse of prosecutorial power since the Dreyfuss affair. It is appalling that supposedly educated people want to inflate President Clinton’s sins into criminal acts and are so willing to overlook real crimes by politicians whose prejudices they share: namely Bush’s wars against brown people living near oil.
And by this sentence, you make your own trial experience relevant.
I have litigated, conservatively, a hundred and fifty criminal trials. I can say with certainty that I, and any lawyer I worked with, would have decorously interrupted the judge again with a second objection, or at the very least a request to make his record complete. It would not have to be Law and Order-fairyland-dialogue where the attorney charges ahead over the judge’s ruling, but a simple, statement like, “Your Honor, if I may, to preserve the record, I’d like to also note a continuing objection on the grounds of X.” I did it all the time. It was done all the time. If you didn’t do it when you started, believe me, the first time you were the subject of a jailhouse lawyer’s federal habeas motion for ineffective assistance, you started doing it.
So that’s my personal experience. Admittedly, it’s over five years old. But I don’t imagine the procedural landscape has changed dramatically in that time.
So what’s your criminal trial experience, the experience from which you can confidently conclude that the fact you don’t know many lawyers that would continue after such an interruption is the norm in criminal practice?
The judge doesn’t disallow ANY definition – she disallows the proposed Rule 413, narrowed with subpart one to a particular section. She explicitly permits questioning on the terms in general.
If your interpretation is correct, then Judge Wright and Mr. Bennett have remarkably short memories. All Mr. Bennett would have had to do is object to the question on the grounds that they violated the judge’s earlier ruling. And Judge Wright, when she ruled as we discussed earlier, would simply have said, “I ruled on this exact issue earlier.” Neither did, because the defintions in use at the moment Clinton perjured himself conformed to the ruling you mention.
Or are you suggesting that Judge Wright deliberately ruled at the beginnign of the depo that NO definition was approved, and everyone just forgot about that ruling?
Irrelevant and immaterial. For purposes of this discussion, I would concede that Starr acted because he was paid under the table to do so, and that Bush visits Guantanamo every weekend to personally flay the skin from a captured Afghani as he grins manicially.
None of that bears on the issue you keep trying to dodge: does the record as it exists right now, if it were a trial record, constitute probable cause for perjury? Answer: Yes.
And I don’t know a single criminal law practitioner, or former criminal law practioner, who seriously believes otherwise.
And Bennet is objecting to the understandability of the thing. And Starr, which is apparently the source of the transcript, has not released the 20 pages where they talk in detail about it. Nevertheless, you still continue to say that he never objected that the definition was not intelligible, you insist I show the portion of the transcript where he used the magic words “compound and complex”, when all that is necessary is that the nature of the objection be clear, again assuming that the judge interrupts.
And congrats on 150 trials as a public defender, that’s a lot of experience. I’m glad that you made every objection out in full and that you were never interrupted by a judge. But the cites I’ve provided and offered indicate you don’t have to keep making the objection, that the objection grounds do not need to be specifically stated if they are clear from the context, and it’s pretty clear that Bennet spent 20 hidden pages demanding that Clinton be asked question by question. I reject your interpretation that they were only discussing 413, the context is clear they were discussing the defintion.
Oh, here’s Weinstein on Evidence:
Weinstein’s Federal Evidence Second Edition section 103.12
[2]-- Statement of Specific Ground Not Required If Apparent From Context
A statement of the specific ground of objection is not required if the ground was apparent from the context. 16 [Note 16] Ground apparent from context. Fed. R. Evid. 103(a)(1) .
2d Circuit United States v. Musacchia, 900 F.2d 493, 496-497 (2d Cir. 1990), cert. denied, 501 U.S. 1250 (1991) (claim of error was preserved for appeal despite lack of specific objection, because defendants’ objections to this testimony were apparent from context and because defense had objected to specific questions about agreements); United States v. Peterson, 808 F.2d 969, 973 (2d Cir. 1987) (defendant’s objections to use of evidence of another check allegedly forged by defendant for impeachment or to show knowledge were properly preserved for appeal, since they were sufficient, taken in context, to alert trial court that defendant objected to this ``other act’’ evidence for any purpose).
Show me anywhere where Clinton or his attorney, did not understand the questions he lied about.
Was it this one:
Q: Please state the name, address, and telephone number of each and every [federal employee] with whom you had sexual relations when you [were] . . . President of the United States. (Where the president answered None.)
This one:
Q: Did you have an extramarital sexual affair with Monica Lewinsky? (He answered no.)
This one:
Q: If she told someone that she had a sexual affair with you beginning in November of 1995, would that be a lie? (He said it’s certainly not the truth. It would not be the truth.)
This one:
Q: I think I used the term “sexual affair.” And so the record is completely clear, have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court? (Where he said I have never had sexual relations with Monica Lewinsky. I’ve never had an affair with her.
Or
This one
Q: In paragraph eight of [Ms. Lewinsky’s] affidavit, she says this, “I have never had a sexual relationship with the President, he did not propose that we have a sexual relationship, he did not offer me employment or other benefits in exchange for a sexual relationship, he did not deny me employment or other benefits for rejecting a sexual relationship.” Is that a true and accurate statement as far as you know it? (He said: That is absolutely true.)
For the third time, the objection that Mr. Bennett raised was that Clinton may not be able to remember the precise definition for one single question. The definition was then provided to him. And Clinton, knowing the definition and having it there, lied. Just like he lied to the abovelisted questions, which, I can’t help but notice, you’ve never responded to.
First: stop talking about the judge’s interruption. It is of zero legal significance. The judge never admonished anyone to be quiet, or acted in any hostile fashion which might lead an attorney to believe he wasn’t free to continue arguing, especially if he hadn’t made his point. The judge’s inetrruption means nothing.
Second, I’m not talking about any magic words. I’m talking about Bennett never giving the judge an opportunity to correct this ruling, assuming it was in error.
Let’s make it simple: immediately prior to the first objectionable question, what do you contend the judge’s ruling was - specifically? And, if different, what do you contend the defendant’s understanding of the ruling was?
For the time I worked - that was about average. One thing public defense work does not stint on is trial time. No one except another PD quite gets that. Probably prosecutors understand the life as well, although during the time I worked, prosecutors were coddled on their case load compared to us.
But I was interrupted by judges and by opposing counsel plenty of times. Did I ever fail to make a record? Yeah, maybe my first time or three out. But certainly not by month #2, not on something simple like this. Were there other guys that made this mistake more frequently? Sure, I suppose there were. But you know what? None of them were of William Bennett’s caliber.
OK - then you tell me. If your interp is correct, then WHAT, SPECIFICIALLY, WAS THE JUDGE’S RULING? And what, specifically, did the defendant think it was? Because the judge’s instruction seems pretty clear to me. And it isn’t confusing at all.
Have you ever encountered a situation in which the mere interruption of a judge to a single objection meant that all conceivable objections were preserved for appeal? Or a situation in which a judge’s mere interruption so terrified a lawyers that he was unable to offer a more complete objection?
Or a situation in which a judge’s interruption had ANY LEGAL SIGNIFICANCE WHATSOEVER?
Never. I had to read Bob’s posts about 4 times each because his assertions and “arguments” are so far out there that I couldn’t make them into a coherent, logical issue. It’s nearly identical to having to deal with pro se petitioners who have access to a couple law books and believe they are making legally persuasive arguments, when, in fact, they have no clue. That’s what Bob reminds me of.
oh gads, Hamlet, now you’ve gone and done it. don’t you know by now that the correct answer to “you were or are a prosecuting attorney” ** cannot be**
“yes”??? you’re either currently practicing or not, and that’s really an important distinction since if you’re not currently practicing law, you’re not a lawyer anymore???
You once again rely on the general terms sexual relations and affair. My position is that as Clinton was weaseling, it didn’t describe what he thought he was doing. If it was perjury, then Starr should have charged him. The Republican controlled house did, and it was an acquittal in the Senate. Starr then had the option to charge Clinton after he left the WH. He chose not to. I don’t recall whether he claimed it was “prosecutorial discretion” or some other excuse, but lack of zealousness in persecuting Clinton was not Starr’s failing, his discretion seemed utterly lacking and I’ve cited above where even he thought he went too far.
Perjury is a crime and if a prosecutor’s office has only one case, and it is that case of perjury, and they were willing to stop the executive functioning of the nation to suggest impeachment, why wouldn’t they think it was important enough to pursue when Clinton was out of office, when it would not have ground the functioning of the highest level of federal government to a halt. The answer is that stopping the highest level of federal government was the only real purpose, and a political one. If Clinton had his day in court, it could easily have turned into a disaster for the political fortunes of Starr’s political backers.
Starr didn’t put together an indictment, because Clinton would have produced those other 20 pages of Starr redacted transcript and got the thing kicked out on the basis that the definition was objected to and he offered to answer specific questions about specific conduct (see page 25) and in fact demanded detailed questioning. The Jones lawyers refused that demand and the Starr questioning ignored that request too. The “definition” was objectionable and unintelligible and too complicated. Once objected to, if the offeree insists on using it, it may turn out to be utterly useless, as it was here. That’s why in deposition, when a lawyer makes an objection as to the form of the question, the questioner had damn well better pay attention, otherwise the answer can be useless.
I remember reasonably well now (after two weeks of having my recollection refreshed) about how Starr was going to break down Susan McDougal, Julie Hiatt Steele and Web Hubbell (and Jim McDougal) and all the chest thumping going on. Only Jim McDougal, a lifelong con man who ripped the Clinton’s off of $50,000 was going to cooperate, and he begged his former wife to do the same: she decided to sit in jail, in solitary in chains for two years rather than tell the kind of lies Starr demanded. Keep in mind, refusal to cooperate is usually treated like the recent Judith Miller case, in prison, but no constant chains and solitary: this was unprecedented. And while Susan McDougal can certainly be accused of not being trustworthy because she was probably a con woman, there is no reason to believe that Julie Hiatt Steele, a lifelong respectable person, was not telling the truth when she said that Starr demanded that she tell lies: and a jury spanked Starr’s ass red. And Starr had to let Web Hubbell go to in the end because even Starr believed that Hubbell had nothing to implicate the Clintons, but that didn’t stop Starr from indicting Hubbell’s wife, a sleazy move he dropped.
Yes, there is the remotest possibility that Starr didn’t bring charges because of prosecutorial discretion, but I think that unlikely. He didn’t bring charges because his political motivation was gone, and he risked another jury spanking his ass red again, like the Julie Hiatt Steele case, and then making a martyr out of Clinton if he were acquited or the jury hung. It may even been that Starr did not have probable cause to indict due to the objections and missing 20 pages, and that would have been more humiliating. The best way for Starr (and his successor) to preserve their legal reputation and save their political gains was to drop it. All of which would deprive Clinton of his day in court. Admittedly, Clinton then had very little left to argue personally, but his public supporters would have liked to see Starr’s office battered and themselves get discovery rights and a day in court.
Bennett’s demand for specific questions about specific acts is on the record, and in the missing 20 pages probably spelled out in great detail. Remember Linda Tripp passed along the details before the deposition, and they refused to ask about specific acts. That is because they all wanted to play a game about definitions. And you guys are still playing that game.
Your bitterness that it did not turn out the way you wanted it to is just bizarre. Had your champions asked questions in plain english, as is required by the law, and had Clinton lied, you would have a case. But you blew it. And you blew it because you knew the risk that if you asked Bill Clinton, did Monica Lewinsky fellate you, that he might say yes. There is a remote possibility that might have helped in the Jones case, but the Jones case was never about the Jones case, Jones’ case was being funded and unethically controlled by the someone’s funding it, not for the purpose of helping Jones, but for the purpose of getting Clinton. Had Clinton been asked directly and answered directly, he would have been embarassed, but the work of the high level of the executive branch could continue. The purpose of the case was to cripple the executive operations.
By the way Hamlet, I thought you were going to pick up your marbles and “the rest was silence?” Look, you don’t want to be civilized, I told you to fuck off and I meant it. Hey, Hamlet, how about “the rest is silence?”
After arguing over this for a week or more now, I am more convinced than ever that Clinton got a raw deal, that the Jones and Starr cases were nothing more than opportunities to get him that had nothing to do with the normal use of the legal system, but were political hatchet jobs and neither was brought in good faith, good faith that could have been shown by asking direct questions rather than insisting on an ambiguous definition they knew would be argued over.
I find deplorable that people would say that someone was guilty of crime they have not been convicted of, and I find it absolutely disgusting that some of these people are lawyers. It boogles my mind to think that a public defender would make these assumptions. The reason for this is that there is a presumption of innocence for someone charged (and not charged), and that someone charged is entitled to their day in court, to confront their witnesses, to take the stand on their own behalf (or remain silent), and to have a lawyer effectively represent them. To be judged by a jury that has no preconceptions and is willing to follow the law. Clinton never had any of these rights against those that argue publicly that he is guilty of perjury, he never was allowed to call witness one. Were these people sitting at a bar having a few drinks saying “he dodged a big one” without really knowing what they were talking about, I wouldn’t worry. But to see so many members of the public in this thread completely ignoring every single one of those rights, including a public defender, and insisting the guy is guilty, ignoring every single one of his rights is disheartening for my hopes for this country. If Bill Clinton can’t get his rights, you and I won’t be able to either. And in large part, that is what goes on in criminal courts. Yeah, Bill Clinton had the legal help to get to the point where he couldn’t be charged, but his political enemies perpetuate a myth that he is guilty of perjury, when he is presumed innocent, his reputation damaged greatly.
And I don’t want the same to happen to Tom DeLay and Lewis Libby, and possibly others. So far, all the supposed leaks from Fitzgerald’s office have turned out to be false, all the false alarms about today is the day, and there will be 22 indictments. The irresponsibility of the Starr days are gone. I’m willing to presume that DeLay and Libby are innocent. I’m willing to assume that those not charged are not under investigation or suspicion. If they are convicted, it should be by the beyond a reasonable doubt standard by an unbiased jury. If they are acquitted, or the charges dropped, I’m not going to say they are guilty. I’m not going to say Karl Rove is guilty, he hasn’t even been charged. And I don’t like these guy’s politics, and in particular, Libby and Rove had a lot to do with starting a way I think aggressive war in violation of international law: but that’s not the same thing as asserting they are guilty, it is saying I want proper authorities to investigate.
Playwright Robert Bolt, in “A Man for All Seasons” gives Thomas Moore these words to his friend turned vigilante:
" And when the last law was cut down and the devil turned around on you, where would you hide Roper, the laws all being flat? This country is planted thick with laws, from coast to coast – man’s laws, not God’s – and if you cut them down, and you’re just the man to do it, do you really think that you could stand upright in the winds that would then blow ? "
The world has had two great empires of laws, Rome and America. The Roman Republic mowed down their laws and became a dictatorship in the first century BCE, and to a great America has been doing the same, starting with the first OJ trial. We don’t care about 1000 years of the presumption of innocence, we eschew allies in war to seize treasure and not share it, people who disagree are called traitors and worse.
Lawyers stand in a public forum and proclaim the guilt of a man not charged, when 20 years ago, even the prosecutor of that case would have not dared to say more than that the evidence was there to justify the charge. That these lawyers are former criminal defense lawyers leaves me aghast.
As a matter of fact, if you are not acting as an agent for someone, you are not an attorney, that’s what the word means. If you are sitting home on the weekend, yeah, we all understand that your profession is attorney. My point about Bricker is that it’s been five years, not a weekend. If he’s going to get in people’s faces, like mine, perhaps he should be fully accurate and say he’s a non-practicing lawyer, rather the impression, like you are doing, that come Monday he’s going to be representing someone. He did it in the other thread and refused to give a legal opinion. But when he wants to, it’s nothing but opinions.
And as far as sounding like pro pers or pro se’s , you guys take the cake. No citations of anything, ignoring the arguments against you etc.
Umm, you may have simulposted, but I think I just referred to England. How were you referring to England, which I never totally forget about, all those queens and all.
