Double Jeopardy and Roger Clemens: More Than Just a Bad Ashley Judd Movie

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Double Jeopardy: Not just a bad Ashley Judd movie.
The Roger Clemens perjury trial finally started last week. Then just as soon as it got started, it was over as an angry judge called a mistrial because of prosecutorial stupidity.

There's been a lot of discussion on whether these hearings should even be held, and by what authority Congress has to hold hearings regarding baseball -- the authority comes by way of a couple of Supreme Court opinions so stupid they make Bush v. Gore look well-reasoned.

For a reason that I couldn't understand, Rusty Hardin's defense strategy appeared to be focused on attacking the legitimacy of the Congressional hearings. What I couldn't understand about this strategy was that it totally ignored why Clemens was on trial, which was for lying under oath. It didn't matter if the hearings were legitimate. What mattered was that Clemens, in a hearing he demanded, in a hearing he was given a chance to get out of but refused, potentially lied under oath. And Hardin's strategy didn't appear to be addressing that fact.

But for now, none of that matters. The prosecution committed an act so stupid that a mistrial was granted. And because a jury was seated, double jeopardy attached, leaving the possibility, though slim, that Clemens may never face another trial for perjury.

Two weeks ago, right before jury selection started, the attorneys met before Judge Reggie Walton to discussion courtroom procedures and go over evidentiary motions. In other words, the standard pretrial stuff. And during that time, Judge Walton made it very clear to the prosecution that they would not be allowed to mention Laura Pettitte, the wife of Andy Pettitte, or even reference her testimony. So on the second day of the trial, what does the prosecution do? They mention Laura Pettitte.

One of the things we're taught in law school is that if the judge tells you something, then you do what the judge tells you to do. If you don't like what the judge says, you make sure to get his order on the record for appellate purposes, then you do what he tells you to do. The punishment for ignoring a judge's order can be a fine for contempt of court, or much worse, a mistrial.

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The Rocket did take an oath to tell the truth.
The prosecution had a tough case as meeting the burden of proof for perjury is rather difficult. You've got to prove not only that the defendant lied, but that the defendant willfully lied. For instance, the prosecution could prove that Barry Bonds lied when he said he didn't take PEDs since he did take PEDs. The problem was that they couldn't prove he did this willfully since he did testify under oath to taking The Clear and The Cream, which were PEDs. The Bonds prosecutors also had a huge problem in that they had records showing Bonds took PEDs, but the only person who could testify to the validity of those records for evidentiary purposes was Greg Anderson, and Anderson did multiple turns in jail for contempt of court because he refused to testify against Bonds.

The Clemens prosecutors didn't have this problem. They claimed to have physical evidence that Clemens took PEDs. Brian McNamee, Clemens's trainer, was willing to testify that he injected Clemens with the PEDs, and Andy Pettitte, the most truthful and honest man in the world -- NEVER MIND THAT HE LIED FOR YEARS ABOUT HIS OWN PED USE -- was going to testify that Clemens admitted to using HGH.

But one thing the Feds couldn't do was to reference Laura Pettitte, because her testimony would amount to hearsay, and hearsay testimony is not allowed in court, despite what you might believe from David E. Kelley TV shows. So what do the Feds do on day two? They show a video from the Congressional hearings. And during this video Rep. Elijah Cummings is talking about Andy Pettitte. And while he talks about Pettitte, he starts to talk about Laura Pettitte. And keeps talking while the judge seethes on the bench.

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The Rocket still has time to pose for family photos.
The one thing they couldn't do, they did. They made a mistake so stupid that not even failed prosecutor Nancy Grace would've done it. They made a mistake so stupid that even the genius who had the idea to have O.J. Simpson try on the glove couldn't believe someone was such a moron.

This brings us to the topic of double jeopardy, which is part of the Fifth Amendment and not just a bad Ashley Judd movie. Double jeopardy states that a person cannot be tried twice for the same criminal action. Most people think this only comes into account after a verdict. But in reality, it attaches once a jury is seated and testimony begins, as it had with the Clemens case.

There is some question as to whether double jeopardy will be applied, though there has been much Internet talk on the topic. Generally, as long as there's no verdict, a court will allow for a retrial, but in circumstances of extreme judicial misconduct, courts will declare double jeopardy and not allow a retrial.

My first thought on this last week, based on the angry language of the judge, was that double jeopardy would be declared due to the mistrial and Clemens would not be retried. Then again, I'm not a criminal attorney, so I did some reading and consulted with some criminal attorneys, and my belief now is that the prosecution will be allowed to retry Clemens -- a decision we should know come September 2.

But no matter what happens, nothing matters if the prosecutors keep making stupid mistakes and ignoring the judge's orders. And no matter what happens, the reputation of Roger Clemens will probably never be cleared, verdict or no verdict.

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