July 14, 2011
Clemens - This Case Could Go Into Extra Innings
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?
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I see no possibility of Clemens getting a hall of fame nod, with or without a conviction on these perjury charges. There are going to be a lot of players retiring during this time period (say 2005-2015, maybe a little longer on each side) who put up great numbers but are going to have that lingering doubt as to whether they chemically boosted their performance. For most such players I suspect they will have to somehow prove that they did not take drugs rather than have the positive proved against them.
Posted by: Soronel Haetir | Jul 15, 2011 5:54:47 AM
When I was an AUSA in Houston, we had occasional "one case lawyers" coming down from DOJ in Washington. Many were smart kids with very little experience who had the resources of the DOJ and very light caseloads. Handling one case at a time, no matter how big the case, does not provide the experience necessary to deal with curve balls thrown by veteran defense lawyers before seasoned and independent judges. Nor does such experience provide the foundation upon which to build good judgment, which was certainly lacking in the Clemens case.
Posted by: Michael J. Brown | Jul 16, 2011 10:28:24 AM
Unfortunately, even if the defense was provoked into moving for mistrial by the prosecutor's improper tactics, that doesn't trigger the Double Jeopardy bar. Under Oregon v. Kennedy (1982), causing a mistrial has to have been the prosecutor's intent. Absent such a finding, there's no DJ bar to retrial, according to the Supreme Court, and any appeal by the defense would be legally "frivolous." A frivolous appeal will not support a stay of retrial under Abney, and any attempted appeal would be summarily dismissed.
Posted by: Peter G | Jul 17, 2011 8:32:53 PM