Struck Out: Will the Clemens Prosecution Get Another At-Bat?

In 2008, Roger Clemens appeared before Congress and testified that he never used steroids or Human Growth Hormone (“HGH”).  During his testimony before Congress, Representative Elijah Cummings of Maryland issued the following warning to the seven-time Cy Young winning Pitcher:  “If you tell the truth, you’ll be fine. If not, you’re gonna have big problems.”

Fast-forward three years later and past the conclusion of an extensive investigation handled by the United States Justice Department.  In this moment, it was essentially Elijah Cummings of all people who helped get Clemens out of this “big problem.”

That is, for the time being.

On day two of the criminal trial against Clemens, Judge Walton of the United States District Court for the District of Columbia declared a mistrial.  Prior to the commencement of the trial, Judge Walton ruled that Andy Pettitte’s wife, Laura Pettitte, could not testify in the trial.  Prosecutors sought to have Laura Pettitte testify that her husband told her that Roger Clemens told him that he used performance-enhancing drugs.  Follow all of that?  This testimony, is inadmissible under the Federal Rules of Evidence as “double hearsay”.  Given this evidentiary issue, Judge Walton ruled that Laura Pettitte could not testify in the trial in this regard.

However, on the second day of its case, the Prosecution aired a video before the jury which depicted Representative Cummings reading from an affidavit, wherein Laura Pettitte discussed a conversation she had with her husband regarding Clemens’ use of performance-enhancing drugs.  Upon the playing of this video, Judge Walton halted the proceedings and Clemens’ lawyer, Rusty Hardin, ultimately moved for a mistrial.  A mistrial was declared by Judge Walton, who argued that he could not “un-ring the bell,” after the airing of this video,wherein Representative Cummings read testimony which was previously ruled inadmissible.

Upon declaring the mistrial, Judge Walton scheduled a September 2, 2011 hearing to determine whether the Prosecution can move forward with its case against Clemens in a new trial.

Will Prosecutors Be Able to Re-Try Their Case?

In relevant part, the Fifth Amendment to the United States Constitution provides, “[No person shall] be subject for the same offense to be twice put in jeopardy of life or limb.”  This provision of the Fifth Amendment is known as the “Double Jeopardy” clause.  The Double Jeopardy clause “. . . protects a criminal defendant from repeated prosecutions for the same offense.”  Oregon v. Kennedy, 456 U.S. 667 (1982) (citing, United States v. Dinitz, 424 U.S. 600, 606 (1976)).

In a jury trial, Double Jeopardy attaches when the jury is empaneled and sworn in.  Thus, in this instance, Double Jeopardy had attached, since a jury had been seated and sworn in.  Therefore, generally, further action against Clemens would be barred by the Double Jeopardy clause, due to the declaration of a mistrial.

However, an exception exists to Double Jeopardy barring further proceedings against an individual for the same crime when a mistrial is declared.  In matters like the one at hand, where the Defense asked for the declaration of a mistrial (and hence, the trial was “. . . terminated over the objection of the defendant”), courts generally apply the “manifest necessity” standard to determine whether further proceedings are barred by Double Jeopardy.  Oregon v. Kennedy at 672 (citing, United States v. Perez, 9 Wheat. 579, 580 (1824)).  However, the “manifest necessity” standard is more applicable when a mistrial is declared as a result of a hung jury.

When a defendant asks for a mistrial, however, the Supreme Court has found that the “manifest necessity” standard does not apply.  (See,  United States v. Dinitz).  Instead, if a defendant seeks the declaration of a mistrial, Double Jeopardy will only bar the re-trial of the defendant if “. . . the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.”  Oregon v. Kennedy at 679.

Thus, if Clemens’ attorney Rusty Hardin wants to argue that the 5th Amendment bars the re-trial of Clemens, he must demonstrate that the Prosecution’s conduct on the second day of trial was “intended to provoke the defendant into moving for a mistrial.”

While the Prosecution’s actions which led to the declaration of a mistrial were arguably careless, there is not any evidence that they were made intentionally to provoke Clemens into moving for a mistrial.  Rather, what likely happened in this instance, is that after three-years of investigation and preparation for this trial, the Prosecution failed to remember that Representative  Cummings read from an affidavit by Laura Pettitte–testimony ruled inadmissible prior to the start of the trial–in a video they desired to show the jury.  A careless and unnecessary mistake, yes.  However, it is unlikely an intentional provocation of a defense motion for a mistrial.

Therefore, due to Supreme Court precedent and the lack of facts evidencing that the Prosecution intended to provoke Clemens’ counsel to move for a mistrial, it is likely that on September 2, 2011, Judge Walton will rule that Clemens can be re-tried, and the Prosecution will get one more at-bat to prove its case.

2 thoughts on “Struck Out: Will the Clemens Prosecution Get Another At-Bat?

  1. Thank you for the overview on the double-jeopardy issue. Do you think the prosecution would negative feedback from re-trying this case? I get the vibe that people are tired of court resources being used up on Roger Clemens and steroids in general.

    1. Actually, I think the feedback would be worse if they didn’t retry the case. The mistrial was declared because of a procedural issue, not as a result of a hung-jury. Thus, the mistrial says nothing about the strength of the prosecution’s case, but rather, that they didn’t follow the judge’s guidelines in a way that was prejudicial to Clemens.

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