Thursday, July 14, 2011
Clearly the first question that will need to be answered is whether Roger Clemens can be retried. As noted here, double jeopardy will be the source of the controversy. The defense will likely argue that they had no choice but to ask for a mistrial and were provoked by the prosecutorial misconduct into taking this course. In contrast, the prosecution may resort to an argument that the conduct was inadvertent and that a retrial will not jeopardize Clemens. See Del Quentin Wilber, Washington Post, Roger Clemens perjury trial ends in mistrial after prosecution error
Prosecutors enter the next inning with two strikes against them - they had not one, but two instances where the judge needed to reign them in for not adhering to his rulings. If they get a third strike they are out.
On the other hand, if the defense loses the double jeopardy motion, there is the possibility that they will seek to take this issue up on an interlocatory appeal. This means we are into extra inning as a higher court is asked to review the double jeopardy ruling.
And the equally significant issue is what about the collateral consequences that continue to remain in question. That being, does Roger Clemens join the folks in the Hall of Fame?
What continues to bother me is whether the government should be playing this game. Should our precious taxpayer's dollars be used on such a case?