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Searching for meaning in the Clemens mistrial ruling

Jul 15, 2011, 8:25 AM EDT

Roger Clemens leaves the federal courthouse with attorney Rusty Hardin in Washington

It takes a pretty unique intellect to look at what happened with the Roger Clemens case yesterday — a mistrial ending the thing before it began — and consider it anything other than awesome news from Roger Clemens’ perspective.  No, he may not be 100% out of the woods yet, but when you get your criminal trial stopped on a mistrial due to the government screwing up royally on Day Two, that’s a pretty darn good thing.

But Mike Lupica wants Roger Clemens to know that he has no reason to celebrate at the moment, noting that most legal experts don’t think that the potential knockout punch of the case — an argument that a retrial would be double jeopardy — is likely to be successful. That much may be true. I agree that it’s a stretch that the judge will say double jeopardy attaches and thus prevent a re-trial. But how Lupica can look at this as anything other than a good development for Clemens is somewhat mystifying to me.  Take this quote:

“If (Clemens) is convicted,” Reggie Walton said, “knowing how I sentence, he goes to jail. He is entitled to a fair trial. He cannot get that now.”  In that moment, it was as if Walton was coming at Clemens and his lead attorney, Rusty Hardin, with high, hard stuff of his own.

Lupica goes on to quote an attorney who believes that the judge was sending a message to Clemens as well, with that message being “you had better make a deal now.” Never mind that there is no deal on the table available to Clemens at the moment.

Contrary to Lupica and his source’s view, all I see is a judge who has a reputation for giving out harsh sentences acknowledging how serious the government’s error was.  He’s saying Clemens faced real consequences if he lost — which he did — thus making the prosecution’s error all the worse. His comment had nothing to do with his assessment of the merits of Clemens’ defense. Indeed, it would be improper for the judge to actually say something which signals his opinion as to whether Clemens was truly in deep doo-doo because, at least potentially, there’s going to be another jury seated in a few months and he can’t be in the business of prejudicing them. He’s saying that the gravity of the government’s mistake was huge. Nothing more.

Or maybe something a little more, but not what Lupica is thinking. At least one legal observer thinks that the mistrial ruling — in action, if not in the judge’s words — gave insight into the judge being not particularly impressed with the government’s case:

Artur Davis, a former federal prosecutor and former United States representative from Alabama, said that the swift decision revealed Walton’s underlying opinion of the case.

“The judge could have just admonished the prosecution and embarrassed them enough to undermine their credibility with the jury, but he purposely chose not to do that,” Davis said. “For him to take the very extreme step of stopping the trial says he was fundamentally skeptical of the case.”

That may be a stretch too. And of course, you know what they say about opinions and how everyone got one.  But I see Lupica’s view of this thing being colored by some measure of dissatisfaction that Clemens is getting away with something, causing him and his source to stretch to find some sort of negative here.  And I get that because, man, I’m not a big fan of Roger Clemens or Rusty Hardin myself.

But when you wake up in the morning on trial for your freedom, and you go to bed that night with that trial gone and your prosecutors humiliated, that’s a pretty damn good day. That Lupica can’t acknowledge that is rather curious.

  1. Jonny 5 - Jul 15, 2011 at 8:33 AM

    Is it possible that the prosecutions case was so weak, that the decision to not allow the video kind of killed the case anyway so the prosecution “whoops” showed the video, hoping for a mistrial with the chance to retry? Hey, maybe judge #2 will allow the video as evidence?

    • halladaysbiceps - Jul 15, 2011 at 8:39 AM

      God, I hope it doesn’t go to judge #2. Let this drop, Justice Department. For the sanity of the American People, let it go.

      • FC - Jul 15, 2011 at 9:22 AM

        It’s not worth it. I think Clemen’s reputation has already been heavily tarnished and he may end up somewhat like Palmeiro with little to no chance to make the Hall of Fame. That’s probably the best moral victory.

    • Pierre Cruzatte - Jul 15, 2011 at 10:51 AM

      No. Not possible. That is for sure, 100% double jeopardy, and the prosecution knows that.

      As to when retrial is barred after a mistrial has been declared on the defendant’s motion, “[T]he circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which 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 (1982), 456 U.S. 667, 679.

      • Jonny 5 - Jul 15, 2011 at 12:44 PM

        Thank you Pierre for enlightening me on that. That’s why I asked as I wasn’t sure if it would be a possibility.

      • 24may98 - Jul 15, 2011 at 4:26 PM

        And, how would such intent be proved without bootstrapping – “it is so, because it is so, therefore it is so.”

        Too, remember that DOJ is not acting on its own initiative in bringing this case. It was referred to it by a Congressional Oversight Committee – the one with great power to investigate the Executive.

        Personally, I have trouble see this as egregious conduct – indeed (to me) it seems an unintended editing oversight. Moreover, whatever administration, AUSA”s of the DC District do not have a reputation for being slipshod, but quite the contrary. Of course, today’s increased reliance upon paralegals, might allow for the editing error. (Or, might it be an inside fix by DOJ for Roger?)

        I don’t understand why Judge Reggie brought down his pimp hand with a mistrial. Hearsay (here double) slips into testimony all the time and is often cured by an admonition to the jury to disregard.

  2. halladaysbiceps - Jul 15, 2011 at 8:37 AM

    It’s good to be the Rocket Man right now. I guarantee you he was doing some major partying after the trial was thrown out yesterday. I wonder if he’s a bourbon man, Craig.

  3. mattjg - Jul 15, 2011 at 8:39 AM

    I’ve heard 3rd hand that Roger Cossack said on ESPN that the Clemens trial has already cost the government north of $10 million. Doing it all again seems like a colossal waste of time and money.

    I was kind of on the fence about the first prosecution. On the one hand, I don’t think Congress has any business investigating what baseball players do or don’t stick in their butts. On the other hand, I can see why you can’t let someone blatantly lie to Congress under oath and get away with no repercussions. Clemens is clearly guilty in the court of public opinion. His career and reputation are ruined. I’m not sure it’s worth spending another $10 million or so to put him behind bars.

    • yankeesgameday - Jul 15, 2011 at 11:28 AM

      I wasvgoing to write something very similar. buy you put it very well. So thank you for saving me some time.

    • clydeserra - Jul 15, 2011 at 4:16 PM

      So, if a prosecution is too expensive the government should drop the case?

    • 24may98 - Jul 15, 2011 at 4:34 PM

      The cost of prosecution is a red herring. DOJ has a annual budget voted by Congress that referred this case for prosecution to it. Is it going to tell Congress (specifically then Henry Wexler) it doesn’t want to expend funds that budget to protect the integrity of Congress from perjury in response to the referral? (Remember, it was a Democrat Congress referring to a Democrat administration at the time.)

      • clydeserra - Jul 15, 2011 at 5:51 PM

        what does a democrat*IC* congress and democrat*IC* president have to do with anything?

      • 24may98 - Jul 15, 2011 at 8:20 PM

        It has to do with the governmental authorities of those branches being of the same party therefore likely having greater power in concert to effect the proper ends of unobstructed justice under the law; as when the two branches are involved in prosecuting a prima facie violation of the law by perjured testimony.

      • clydeserra - Jul 15, 2011 at 9:57 PM

        that sounds like unfounded speculation.

        I don’t know who the actual AUSAs were, were they career people?

      • 24may98 - Jul 16, 2011 at 3:47 PM

        @ Clydeserra: Don’t apprehend your point, but on what I infer is your “speculation” regarding “career” AUSA’s versus politically appointed AUSA’s?

  4. Pierre Cruzatte - Jul 15, 2011 at 9:06 AM

    It’s not that jeopardy didn’t attach. It definitely did, with the seating of the jury. It’s just that mistrials are an exception to the rule. And the only exception to the exception is for a mistrial in the defendant’s favor that’s based on the merits.

    However we feel about it, there’s really no way we can say that the USAO’s douchiness touched the merits.

    (By the way… are we at the point where it’s safe to assume that Lester Munson has pictures of Robert Iger in flagrante delicto? How does this man still have a job?)

  5. alexb64 - Jul 15, 2011 at 9:33 AM

    This is a Lupica article so his actual thinking may be nothing more than “HE’S NOT A NEW YORK MET SO HE CAN BURN IN HELL!”

    Or maybe his built up guilt over all the money he made off steroids…never mind Lupica feels no guilt over that what so ever since he rebuffed a suggestion to donate profits from his “Summer of 98″ love letter to McGwire, Sosa & MLB to aid steroid awareness in schools.

    • jimbo1949 - Jul 15, 2011 at 10:35 AM

      When anyone with the stature of Pupica

  6. virtparalegal - Jul 15, 2011 at 9:47 AM

    Jeopardy attaches when a jury is sworn. Therefore, a mistrial that is caused by the prosecution, or even the judge, means it would be double jeopardy to retry him. You learn in law school that is why the prosecutor NEVER asks for a mistrial. The only legal question is whether the judge abused his discretion by declaring a mistrial that was based entirely on the actions of the prosecutor. It seems to me to be a clear cut case that the prosecutor CAUSED a mistrial – they acted in direct contradiction to the Judge’s orders. The Judge could have let them off with a warning, and if the defense asked for a mistrial, that waives double jeopardy, but here it was clearly the prosecutor causing it.

    When a journalist says he doubts jeopardy has attached, that is horrible journalism. Jeopardy attaches when a jury is sworn (I forget when it attaches if it’s a trial by a judge); the jury was sworn, jeopardy attached. The only question is if somehow a Judge’s declaring that the prosecution caused the mistrial is overturned, which I seriously doubt will happen because the prosecution has no excuses. You can’t blame your tech guy or anyone else – the prosecutor is responsible for the whole prosecution team.

    • Pierre Cruzatte - Jul 15, 2011 at 10:41 AM

      Well I probably wouldn’t accuse Craig of complicity in “horrible journalism,” but yeah, there’s no question about attachment. (For a bench trial, btw, it attaches when the first witness is sworn.)

      But the “mistrial exception” isn’t about causation, it’s about who asked for it. Since Hardin requested the mistrial, Clemens only gets double-jeop protection if the mistrial in some way involved the merits of the case. It clearly doesn’t; it involves an evidentiary ruling.

    • clydeserra - Jul 15, 2011 at 4:20 PM

      how does someone thumbs down this comment?

  7. aaronmoreno - Jul 15, 2011 at 10:50 AM

    Jeopardy attaches when the jury is put in the box, but that doesn’t mean that Clemens gets to walk. And I can think of a few reasons a prosecutor would want a mistrial.

    Maybe the fact that legal experts don’t think the double jeopardy argument will work should resonate with law students more than the crap they learn in law school?

  8. tuftsb - Jul 15, 2011 at 10:55 AM

    “Is it possible that the prosecutions case was so weak, that the decision to not allow the video kind of killed the case anyway so the prosecution “whoops” showed the video, hoping for a mistrial with the chance to retry? Hey, maybe judge #2 will allow the video as evidence?”

    You mean that the proescution threw the trial akin to the Black Sox? Now let’s investigate that – and this time, make Jeff Novitzky dive into dumpsters in the government’s offices.

    “On the other hand, I can see why you can’t let someone blatantly lie to Congress under oath and get away with no repercussions.”

    Yes, we saw the terrible consequences of lying to Congress that were faced by Rep. Charlie Rangel who lied (perjury) on years of finaincial forms required by the House.

    • koufaxmitzvah - Jul 15, 2011 at 12:00 PM

      Seriously. If the government isn’t going to go after the Oil Companies and the Banking Industry and Wall Street Honchos for lying to Congress, then there is no point to this prosecution.

      Roger Clemens is a prick, but that’s no reason to place another $10 million under the watchful eye of a prosecution dumb enough to get a mistrial on the 2nd day of court.

      • 24may98 - Jul 15, 2011 at 4:49 PM

        “OIl Companies”? . . . Yes, I remember when our Secretary of State was campaigning she announced that she would “Sue OPEC”, but now she says never mind; albeit as Sec. State she has authority to dispose of the theoretically presumed “sovereign immunity” defense of the cartel. (Then the Presidential bow to the Saudi KIng is another problem. Not to mention the the present policy tacit participation in the cartel’s production cutbacks (that determine price) by virtually prohibiting US oil production in Alaska and the Gulf of Mexico – more US oil would lessen imports and force world price downward.

        And “Banks”? How do you overcome the “defense” of “too big too fail”?

  9. Chris Ross - Jul 15, 2011 at 1:36 PM

    I guess the big question now is whether the prosecution should stop doing what they’re doing. On the one hand, they have Clemens appearing to have possibly perjured. However, on the other, you have a lot of taxpayer money that could be used otherwise. It’s going to be interesting to see what the prosecution does and how the whole situation unfolds. Personally, I think Clemens deserves to be punished to the full extent of the law but that’s just me.

    http://chrisross91.wordpress.com/2011/07/15/what-a-shame/

  10. 24may98 - Jul 19, 2011 at 5:29 AM

    Clemens Error: Deliberate or Inadvertent? An interesting analysis based on the transcript:

    http://lawprofessors.typepad.com/whitecollarcrime_blog/2011/07/clemens-was-this-all-a-discovery-error.html

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