Commentary on Roger Clemens Mistrial - Called for Rain

Judge Reggie Walton, nominated to the federal bench by President George W. Bush, just tossed out for today (mistrial) the Roger Clemens case.  Hon. Walton had previously been appointed an Associate Judge of the Superior Court of the District of Columbia by President Ronald Reagan and later George H. W. Bush.  He has sat on several high profile cases and been tough. For example, he was the judge that gave a sentence to Scooter Libby of 30 months in federal prison and a fine of US$250,000, a sentence on which Libby was later granted clemency.(see here) This is not the first case that prosecutors have had issues on with regard to abiding by the rules (e.g.,Ted Stevens discovery fiasco here). Several thoughts:

• Some will argue that Judge Walton did what needed to be done.  After all, one can't erase from the minds of jurors inadmissible evidence of this magnitude.  This is a he said -he said case and the veracity of a key witness will be crucial in this trial.  An inadmissible compromise of this evidence could unfairly slant the case against the defendant. Others will take the opposite position.
• Judges make tough calls and it is easy to call something "harmless error" and hope that there is later overwhelming evidence that will support that position. But that isn't the right way to judge the case - it needs to be examined at the specific point in time when the violation occurs, as was done by Judge Walton.
• This is not necessarily a "win" for the defense.  Clemens, if paying his lawyers by the hour (more than likely), could have additional attorney fees to contend with.  Not to mention that the defense seemed to like this jury - and there is no assurance that if this case is retried they will have as favorable a jury.
•  Prosecutors need to be careful.  They guard our most important rights.
• A key issue that will be up to bat next is whether Clemens can be retried.  The defense will likely argue that the jury was sworn and double jeopardy bars a retrial.  The prosecution will argue that trial is permitted and that what happened was inadvertant (see LA Times here).  Key issues here may be whether the defense asked for the mistrial and whether the prosecutorial conduct goaded the defense into having to ask for a mistrial (if in fact they even did). The leading Supreme Court decision that will be examined is Oregon v. Kennedy, 456 U.S. 667 (1982).  One case interpreting Kennedy stated: 

"[I]n Oregon v. Kennedy, the Supreme Court created an exception to this rule when it held that the Double Jeopardy Clause does bar retrial in the limited situation where the government engages in prosecutorial misconduct which gives rise to a successful motion for mistrial, and such misconduct 'was intended to provoke the defendant into moving for a mistrial.'"U.S. v. Doyle, 121 F.3d 1078 (7th Cir. 1997).

• The more important question, however, is whether such a case is worth expending our precious tax dollars. Hopefully prosecutors will carefully consider this question.

(esp)