Wednesday, November 9, 2011

Interesting Request by Defense In Roger Clemens Trial

As many of you know United States District Court Judge Reggie Walton declared a mistrial in the first Roger Clemens perjury trial. Judge Walton granted the mistrial after finding prosecutors presented evidence to the jury that he previously ruled inadmissible. A retrial is scheduled for April of 2012.

Now, the Roger Clemens defense team is asking the Court to award attorney's fees incurred during  the first trial based upon the prosecutor's conduct which caused the mistrial. At first blush, this appears to be a novel and creative argument. The U.S. Attorneys Office disagrees, arguing that Clemens is not entitled to attorney's fees because of the doctrine of sovereign immunity. The government further argues that even if sovereign immunity did not apply, Clemens would be required to show that prosecutors engaged in "sanctionable misconduct" which the Judge, in allowing a retrial has already decided they did not.

From a practioners standpoint what's noteworthy about the defense tactic is how it is clearly designed for no other purpose than to annoy prosecutors and attempt to stick it to the government. In the 2006 season Clemens pitched for the Houston Astros for three months and made a little over 12 million dollars. In the 2007 season he decided to pitch halfway through the season and signed a contract with the New York Yankees that paid him a total of 18.5 million dollars. It is estimated by no less a source than that Roger Clemens' net worth is around 60 million dollars. While it's true that we don't have any idea what Clemens living expenses are, it's probably a safe bet that he can use some of his 60 million to pay his lawyers. Even if the government is made to pay, Clemens still has to go on trial. Getting reimbursed by the Justice Department when your worth 60 million dollars seems far less important than going to jail.

For a more through discussion of the legal issues see,


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