Roger Clemens Luckier Than He Is Smart

Friday, 15 Jul 2011 06:55 PM

 

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Roger Clemens is one lucky man. He’s not particularly smart, and neither apparently is his lawyer, who, according to The New York Times, failed to object as soon as the prosecutor started to play a tape that the judge had earlier ruled could not be shown to the jury. The only person who deserves credit for ending the fiasco that played out in federal court is Judge Reggie Walton who ordered a mistrial.

Clemens is not particularly smart because it was his own arrogance that got him in trouble. He was not subpoenaed to testify in front of the congressional committee looking into steroid use in major league baseball. Not satisfied to deny steroid use on 60 minutes, Clemens volunteered to testify under oath. His testimony contradicted findings made by former senator George Mitchell. Obviously a congressional committee would believe Mitchell over Clemens. The result was in inevitable indictment for perjury.

Clemens apparently made the additional mistake of confiding his steroid use to the most credible of his teammates, Andy Pettitte, who then apparently told his wife about Clemens’ admission. It was this hearsay evidence of Laura Pettitte that the judge properly excluded, ruling that “a first year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible [hearsay] evidence” from another witness. Nonetheless the prosecutors showed this prejudicial hearsay to the jurors. The judge rebuked the defense for not having objected as soon as the video began playing. The defense then apparently sought a mistrial and the judge, after a recess, reluctantly granted it.

This was a real stroke of luck for Roger Clemens. It is unlikely that he will be retried because, jeopardy had already attached when the judge made his ruling. Unless the motion by the defense for a mistrial is deemed to be a waiver of double jeopardy, the case is over. (Had the defense immediately objected to the video, but left it to the judge to decide to grant a mistrial, instead of moving for that remedy, Clemens would be in an even stronger position to oppose a retrial.)

Several commentators have been quoted as saying that there is no double jeopardy bar to a second trial. One former federal prosecutor put it this way, “If I were a better, I’d bet that this case will be retried. Just consider this a false start to a race and the race will start again in the fall.” I will take that bet. The law is that when a mistrial is entirely the fault of prosecutors and when the prosecutors acted in bad faith to cause the mistrial, a second trial is not permitted. There is a good reason for this. If prosecutors could get a mistrial without double jeopardy by simply messing up, they could use this ploy to get a “do over” if they picked a bad jury or if the case were not going well for them. To prevent such manipulation of the system, the courts generally preclude a second trial when the first trial ended as a result of prosecutorial misconduct.

That rule should apply here. There is absolutely no innocent explanation for why prosecutors would put before the jury evidence that the judge had clearly excluded. Prosecutors are used to getting away with such shenanigans, because most judges are reluctant to declare mistrials and simply admonish the jury to ignore the prejudicial evidence. But a skunk once thrown into the jury box leaves its stench behind, as all practicing lawyers well know. Accordingly, the courts should prevent the government from simply considering this a “false start,” thus allowing the “race” to begin again in a few months.

Even if the courts were to permit a fresh start it would be wise for the Justice Department to drop the case at this point. Prosecutors have better things to do than to go after arrogant athletes who in an effort to preserve their place in baseball history, deny what most people believe. The federal government seems to have devoted more time and attention to trying to put Roger Clemens in jail than they did to trying to find Whitey Bulger, a mass murderer who was hiding in plain sight for many years.

So let baseball sit in judgment of Roger Clemens. Let the Hall of Fame decide whether his extraordinary pitching career has been sufficiently tainted by his post career actions to deny him a well-deserved place in Cooperstown.

Perjury is a serious crime, especially when it takes place in courtrooms. One of the Ten Commandment prohibits bearing false witness, and that is as it should be in situations where lives or liberty are at stake. But volunteering to testify at a congressional hearing and offering an account which is contradicted by credible witnesses is a moral misdemeanor not worthy of 3 years of investigation and a second trial.

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