Second Swing: Roger Clemens’ Re-Trial

Nine months ago, after the prosecution had only put two witnesses on the stand, the judge in the case against former MLB pitcher Roger Clemens, declared a mistrial.  This mistrial stemmed from a procedural error committed by the prosecution, who showed a video referencing testimony by Andy Pettitte’s wife, which was previously ruled inadmissible.

Today marks the start of the prosecution’s second trial against Clemens.  Clemens faces six charges:  one count of obstruction of Congress, three counts of false statements and two counts of perjury.  While nine months is not an eternity, much has happened over the last nine months which may affect the outcome of Clemens’ trial.

First and foremost, the prosecution has arguably been given a procedural advantage in being able to try the case for a second time.  Although the prosecution was only able to present two witnesses in its first go-around at trying Clemens before a mistrial was declared, it arguably obtained a sense of the strength of its case in presenting those two witnesses.  While Judge Walton commented that not even a first year law student would make the procedural error that the prosecution made in the first trial, it appears that the prosecution refuses to make such an error in the second trial.  This is demonstrated by the fact that the prosecution has added three additional lawyers to its case.  Arguably, these lawyers will serve to protect against procedural errors, while also providing more detailed analysis and investigation into the case.

Additionally, because the prosecution was allowed to retry the case, it was essentially given an additional nine months to build its case.  During this time, it was allowed and able to conduct additional interviews with witnesses and re-examine evidence.  While this may seem unimportant, one of the greatest gifts a trial lawyer can be given, is time.  Trials take an extensive amount of time to prepare.  Under the pressure of presenting a trial and upholding a defendant’s constitutional right to a speedy trial, sometimes sacrifices must be made in fully developing a case.  Thus, when an additional nine months is granted to prepare for a trial, it can greatly benefit the prosecution.

While there are definitely some factors that favor the prosecution going forward with the second trial against Clemens, the defense also has some windfalls in the second trial.

First and foremost is the fact that jurors may be largely displeased by the fact that the government is retrying the case against Clemens, which some believe should not have even been tried in the first place.  Recently, a report surfaced indicating that jurors approached Judge Walton after the first trial to indicate that they believed trying Clemens the first time was a waste of taxpayer money.  Given this belief by some jurors, along with the fact that the prosecution caused a mistrial in the first trial after only two witnesses had been presented, the defense could gain the favor of the jury if it presents a compelling argument as to why prosecuting Clemens is a waste of taxpayer money.  This argument will likely play out better this time around, as now, Clemens is being tried in a presidential election year.  If Clemens’ legal team can tap into the political climate and the jury’s economic sentiments to make them feel that there are bigger issues for the government to be concerned with than whether a retired baseball player lied to Congress six years ago, any arguments made by the prosecution may be nullified in the jury’s mind.

The next big windfall the defense has received over the last nine months centers around another big MLB storyline.  Since Clemens’ mistrial in July 2011, Ryan Braun became the first MLB player to have a suspension for alleged performance enhancing drug use overturned.  A three-person panel overturned Braun’s suspension in February after it found problems with the chain-of-custody of his urine sample.

In Clemens’ first trial, it was expected that his defense would largely question the chain-of-custody of some of the prosecution’s physical evidence.  Reportedly, the prosecution’s physical evidence includes syringes that Clemens’ former trainer alleges that he used to shoot Clemens with performance enhancing drugs.  If these syringes are in fact those that were used to allegedly shoot Clemens with performance enhancing drugs, that means that Clemens’ former trainer held onto the syringes for a period of years.  The former trainer reportedly kept the syringes in a soda can and a FedEx box.

Given the expansive reporting of Braun’s successful appeal based upon a chain-of-custody theory, the possibility that evidence can be tainted if it is not properly handled is at the forefront of the public’s mind now more so than it was in July 2011.  Thus, Clemens’ legal team will likely parlay Braun’s success using this theory into Clemens’ case.  As such, expect significant cross-examination of Clemens’ former trainer into why he saved the syringes, how he handled them and the possibility that others may have had access to them over the years.

Ultimately, both sides have more to lose than gain at the end of this trial.  If the prosecution fails to prove its case, the American public will cry foul over the extensive amount of money the government spent to unsuccessfully prosecute a former MLB twice.  If Clemens loses, he will likely face a jail sentence.  Yet, even if he wins, his image has arguably already been tarnished in the public’s eye.

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