« Ohio ready to try to get its machinery of death back in operation | Main | "Bill for tough riot sentencing runs into millions" »

August 21, 2011

You make the call: should the feds be out in the Clemens case after one strike?

I am very interested in hearing the thoughts of commentors concerning whether Roger Clemens should be subject to trial again after federal prosecutors caused a mistrial through their misconduct at the start of his first trial.  This AP article, headlined "Prosecutors want another shot at Clemens trial," sets out the basic background:

Prosecutors pursing a perjury conviction against baseball star Roger Clemens acknowledge they made a critical error that ultimately doomed their high-profile trial but asked a judge for another chance to convict the pitching standout of lying about using performance-enhancing drugs.

The U.S. attorney's office for the District of Columbia filed arguments Friday disputing Clemens' position that a second trial would violate his constitutional protection against double jeopardy by making him face the same charges twice.  The filing is the prosecutors' first public admission of fault in the mistrial and first explanation of what went wrong.

The prosecutors wrote it was their duty to make sure that evidence was not included in their exhibits.  "The government accepts responsibility for its oversight, and regrets the burdens that error has placed on this court and defendant," they wrote, but argued the mistake was due to the press of other trial matters and was not intentional....

Clemens had argued the showing of the evidence was a deliberate ploy to invoke a mistrial because the prosecutors' case was going badly. But the prosecutors say their case remains strong and Clemens wants to "gain an unwarranted windfall from this inadvertent error."... "It is impossible to credibly assert that the government had a motive for derailing defendant's prosecution because it believed the case was going badly when the case was barely going," the prosecutors said.

Friday's filing was signed by assistant U.S. attorneys Steven Durham and Daniel Butler, the two prosecutors who conducted the trial, along with their boss, U.S. attorney for the District of Columbia Ronald Machen Jr. and a colleague from the office's appellate division. That suggests there has been no change in the prosecution team despite the error.

August 21, 2011 at 09:47 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference You make the call: should the feds be out in the Clemens case after one strike?:


These negligent prosecutors should pay all legal costs from personal assets, and not from tax funds. The taxpayer did nothing wrong and should not be punished with a money judgement. If the errors can be shown to be intentional, motivated by weakness of case, the cost should be triple the legal costs. To deter. The self-dealt immunity granted prosecutors by the Supreme Court from tort liability is unconscionable and unjust. This legal immunity is full intellectual, moral, and policy justification for violence against the malfeasors because of lack of legal recourse. Immunity is not good for any enterprise.

Posted by: Supremacy Claus | Aug 21, 2011 10:20:12 AM

It was nothing but a publicity stunt to bring the case in the first place, and I've heard no good argument why double jeopardy shouldn't apply.

It's a good thing there aren't any other crimes out there for them to focus on.

Posted by: Gritsforbreakfast | Aug 21, 2011 11:08:19 AM

It would be a wasteful indulgence.

Posted by: beth | Aug 21, 2011 12:31:29 PM


Posted by: Stanley Feldman | Aug 21, 2011 12:57:34 PM

jeopardy attached when the jury was empanelled. The trial ended due to misconduct by the prosecution. Whether the misconduct was intentional or inadvertent makes no difference. In my opinion, the def has run the gauntlet once and the fifth amendment prohibits the government from making him run the gauntlet twice.


Posted by: bruce cunningham | Aug 21, 2011 11:15:13 PM

If Bruce's suggestion were the actual rule (double jeopardy prohibits retrial where mistrial based on prosecutorial misconduct, no need for showing of intentionality/bad faith/etc.), I'm not sure that defendants would be better off generally. It seems that this would be a situation (like speedy trial and Batson) where because judges could not calibrate the remedy, they would instead narrow the substantive rule, in order to avoid what they would see as windfall benefits to defendants.

I think what is really needed is a way to calibrate the remedy here. It shouldn't be the case that either DJ applies and the prosecution is over forever, or DJ doesn't apply, and there is no further penalty for the prosecution. Where the conduct is severe enough to cause a mistrial, there should be further consequences. Barring the same prosecutors from involvement in the the second prosecution might be effective, as it would be a big enough pain in the rear for the government that it might get their attention and actually deter violations.

Posted by: Anon | Aug 22, 2011 12:19:29 AM

I agree with anon. I have a hard time buying that the Feds deliberately provoked a mistrial on day 2 of the trial, which means no mistrial with prejudice. But I also have a hard time buying the argument that this was an innocent mistake. A substantial portion of a federal prosecutor's job is redacting stuff. They have a small army working on every aspect of their case, and I am sure every issue that could be litigated before trial has been litigated and decided well before the trial started.

If this were a civil case then the judge could order sanctions, damages and attorney's fees. It is too bad that isn't an option here, since the judge either has to give Clemens a windfall reward or let the prosecution get away without any sanction. But prosecutors are immune from sanctions and cannot be ordered to pay attorney's fees. That is unfortunate. If I were the judge I would not order dismissal with prejudice, but I would issue an order that names the prosecutors and rips them apart, since that is the only real sanction I can issue.

Posted by: Paul | Aug 22, 2011 10:15:49 AM

I agree with the gist of what Anon and Paul say. If Clemons lied under oath, he should not get off because the prosecutor screwed it up. Instead, the remedy should be aimed at the person who caused the problem -- here, the prosecutor -- and should take account of the degree of bad intent and the actual costs the error has created.

Of course the same is true of defense counsel who, by willful neglect of preparation, or simply not being up to it, causes a case to be reversed for IAC.

Lawyers, not taxpayers, need to be responsible for the costs of repairing their own lapses.

Posted by: Bill Otis | Aug 22, 2011 12:06:27 PM

Then what's the point of the whole double jeopardy concept, Bill, Paul and anon? Do you just consider it passe?

FWIW, Jeralyn Merritt made a pretty strong argument that it was in fact intentional. Prosecutors at first didn't say it was a mistake but tried to argue they believed it was justified. The judge, though, understandably didn't buy it.

Posted by: Gritsforbreakfast | Aug 22, 2011 12:52:07 PM

Grits --

"Then what's the point of the whole double jeopardy concept, Bill, Paul and anon?"

The Court explained it better and a greater length than I will attempt to, Oregon v. Kennedy, 456 U.S. 667 (1982), available here: http://supreme.justia.com/us/456/667/

There was a concurrence, no dissents, and unanimity as to the judgment.

"Do you just consider it passe?"

I consider it as passe' as the Court does, yup.

Do you consider lying under oath passe'?

Posted by: Bill Otis | Aug 22, 2011 1:45:12 PM

TRIAL #2 should be barred.

Posted by: Jim Brady | Aug 22, 2011 1:58:07 PM

Bill, the case you cite says "Where a defendant in a criminal trial successfully moves for a mistrial, he may invoke the bar of double jeopardy in a second effort to try him only if the conduct giving rise to the successful motion for a mistrial was prosecutorial or judicial conduct intended to provoke the defendant into moving for a mistrial."

Here, the defense did not move for a mistrial, as Jeralyn's post makes clear. As she wrote at Talk Left: "What the prosecutor didn't count on was [Clemens attorney Rusty] Hardin not objecting, and the Court stepping in to stop the tape and call him out on it.

"The prosecutor had his argument in response to Hardin's anticipated objection all rehearsed. So rehearsed, that when the judge asks him why he didn't redact the exhibit, he responds instead with why the tape was admissible and not covered by the Court's ruling, and that the defense had been provided with the clip months ago. But instead of being able to present his argument as a response to an admissibility objection by opposing counsel, he was forced to present it as justification to the Judge for his violating the exclusion Order, and the tactic didn't just backfire, it blew up in his face."

IANAL, but that distinction to me would indicate Oregon v. Kennedy may not be the controlling case.

Posted by: Gritsforbreakfast | Aug 22, 2011 5:05:15 PM

i'm with grits. the Da tried to get sneaky and got shot down like a rabid dog by the JUDGE when he was expecting to get called on it by the defense. As for why judges should BAR a retrial. Well MAYBE if someone COULD actually punish a DA for stunts like this a more limited punishment could be used but right now there is NO real punishment for DA's who pull this crap! that leaves only the NUCLEAR option of DOUBLE JEAPARDY!

Posted by: rodsmith | Aug 22, 2011 6:50:57 PM

Grits, I agree with Jeralyn and you that this was not an innocent mistake. I certainly do not buy the prosecutor's argument that this was the product of being short-staffed considering DOJ has spent over $1.5 million on this case. But I do not see how provoking a mistrial at that point helps the prosecution. I suspect the prosecution intended to show the jury inadmissible evidence and figured that at worst they only suffer a curative instruction. Under the precedent the judge must find the prosecution's specific intent was to cause a mistrial, and I cannot see that.

This does not mean I agree with the law. I think the prosecutors were caught playing fast and loose with the rules and wish there was some way to hold them accountable.

Posted by: Paul | Aug 22, 2011 7:42:48 PM

Grits --

The question you originally posed concerned "the whole point of the double jeopardy concept."

I was directing my response to that, and not to whether Judge Walton will or should agree to the government's motion here. We'll know soon enough.

To be slightly more specific than I was last time, the "whole point" of the double jeopardy concept is to insure that defendants do not have to run the gauntlet twice. Of course this has numerous exceptions, as most Constitutional rules do. It was for that point that I brought up Oregon v. Kennedy. Its discussion and reasoning are the guides here, even though, as you point out, the facts are somewhat different.

The best known and most common exception to the double jeopardy rule is a deadlocked jury. Lesser known exceptions are when there is some happenstance event at trial that causes it to be aborted pre-verdict.

As in almost all Constitutional adjudiction, the Court balances the interests. There is a strong societal interest in bringing criminals to book, and that properly gets thrown into the mix. Thus, for example, if defense counsel dies of a heart attack on the fifth day of a long, complex fraud trial, a mistrial is probably going to be declared, and no serious person is going to object to starting over in a new trial. It just can't be helped.

When the mistrial is brought about by prosecutorial error, there is a closer question. If the prosecutor intends to derail the trial because he sees he's losing, that's the end of it. In that situation, the defendant's interest in not having to run the gauntlet outweighs society's interests -- society should have selected a more honest representative.

If, however, the prosecutorial error is unintended, the balance shifts back the other way. This is simply a recognition that human beings make mistakes, and the procedures they adopt (like trials) should be able to handle them without always having to be permanently lost.

Whether the error in this case was intended is a question of fact Walton is best suited to resolve, so whatever his decision is will likely be upheld on appeal.

I never had a case before Walton, so I cannot make a fully informed guess about what he'll do. My experience is that most judges dislike calling the prosecutor a thug (for good reason -- most prosecutors aren't) and will relent. On the other hand, Walton seemed quite frosted when this happened, and he seems to me to be one of those edgy, gavel-heavy judges who likes to show the lawyers, especially government lawyers, who's boss. So I would not be surprised by either ruling.

Posted by: Bill Otis | Aug 22, 2011 7:51:03 PM


If that is the case, we need many, many more judges like Walton, instead of ex-federal DAs who have minced down the Constitution by a thousand cuts.

Posted by: albeed | Aug 22, 2011 11:41:52 PM

Paul, the case Bill cited says such "specific intent" by the prosecution is required to invoke double jeopardy if the defense moves for a mistrial. They did not; the mistrial was caused by prosecutorial misconduct through no fault of the defense. Again, IANAL and maybe I'm missing something, but I just don't see how the Oregon v. Kennedy standard applies when the mistrial was declared entirely because of the prosecution's actions in defiance of a judicial order and not in response to a defense motion. The Kennedy case seems aimed at preventing gamesmanship by the defense in seeking a mistrial, but here they did not ask for such relief. If that's really the controlling case, I don't see how the state gets a new trial. And I don't think a judge need be particularly "gavel-heavy" to find thusly.

Posted by: Gritsforbreakfast | Aug 23, 2011 8:11:43 AM

Grits --

"The Kennedy case seems aimed at preventing gamesmanship by the defense in seeking a mistrial..."

There's your mistake. The trial court GRANTED the defense's mistrial motion in Kennedy, meaning that it was substantial, not a product of gamesmanship. It was substantial because there was, indeed, a prosecutorial error that required the court to abort the trial.

You are correct that whether defense counsel moves to abort it makes some difference. But the controlling factor is the prosecutorial act that requires the trial to be ended.

Where the act is intended to bring about the premature end, that's it -- no retrial. But, as I was saying, where the prosecutor did not have such bad intent, a second crack is permitted.

Kennedy's discussion of why a second trial is permitted is the linchpin for the analysis of this case. I would be astounded if Walton does not make Kennedy the centerpiece of his analysis.

Posted by: Bill Otis | Aug 23, 2011 12:20:21 PM

I don't see how the prosecutor's intent in violating the Court's exclusion order should matter for the decision. If the harm to a defendant from a second trial outweighs society's interest in a conviction whenever a prosecutor possesses bad intent, then the same harm outweighs society's interests when a prosecutor possesses no intent at all, or even noble intent, or recklessness or laziness or whatever. The harm to the defendant does not depend -- at all -- on the intent of the prosecutor. As well, society's interest in a conviction is completely unaltered by the intent, good or bad, of the prosecutor.

Just as with the Exclusionary Rule, there is justice in not letting the government violate the law in order to punish a lawbreaker. Many people, particularly many prosecutors, want to find a way to punish all lawbreakers. To them, it's all the same. Bill Otis' comments here are a good example ("the remedy should be aimed at the person who caused the problem"). The Framers of the BIll of Rights had a different view, however. They knew when including the Double Jeopardy Clause in the Constitution that some criminals would not be punished -- regardless of society's interest in punishing lawbreakers -- in order to protect the liberty of all men from an overreaching government.

Personally, with a $1.5T federal deficit, I know how to save a little money here. A second prosecution here is not worth a dime to me. And these prosecutors need to be fired.

Posted by: Mark Pickrell | Aug 24, 2011 9:55:54 AM

Mark Pickrell --

"I don't see how the prosecutor's intent in violating the Court's exclusion order should matter for the decision."

Take it up with the Court that decided Kennedy -- all nine of them, since there was unanimity on this point, including Brennan and Marshall. Do you know more about the Framers' state of mind than they did?

"Many people, particularly many prosecutors, want to find a way to punish all lawbreakers."

God what a horrible thought! They must be Nazis, I tell you!! Punish the people who break the law -- what nonsense. I say we let half of them go. Or maybe 90%. Wouldn't that be a better idea?

"Personally, with a $1.5T federal deficit, I know how to save a little money here."

The idea that we should attack the deficit by dropping the Clemons prosecution is beyond absurd. Try reforming Medicare if you ever intend to be serious.

"A second prosecution here is not worth a dime to me."

It's worth at least 15 cents to me, so do I get the call? Please.

"And these prosecutors need to be fired."

Write a letter to Mr. Holder, and good luck.

P.S. What remedy do you propose when a trial has to be redone because of ineffective assistance of defense counsel?

Posted by: Bill Otis | Aug 24, 2011 11:28:38 AM


Nice snark.

You need to re-read the concurrence (in the judgment) of Stevens, Brennan, Marshall & Blackmun in Kennedy. One quote you may want to pay attention to: "To invoke the exception to overreaching, a court need not divine the exact motivation for the prosecution's error. It is sufficient that the court is persuaded that egregious prosecutorial misconduct has rendered unmeaningful the defendant's choice to continue or abort the proceeding." This case was really a 5-4 decision regarding what the law of DJ should be when a defendant moves for a mistrial and wins the motion. The entire area of disagreement between the 5 & the 4 was over whether proof of prosecutorial motivation is necessarily a consideration whenever a defendant moves for a mistrial and then invokes the DJC. The four in the minority wanted to keep the existing standards in the Court's jurisprudence (as they saw it), which included one prong of analysis that considered prosecutorial misconduct unrelated to prosecutorial motivation (in addition to the prong preserved by the majority, that of goading the defense into requesting a mistrial) whenever a defendant successfully moves for a mistrial. Put simply, the four in the minority disagreed with the majority over preserving the "prosecutorial misconduct/overreaching" prong of the then-existing test -- which did not focus on prosecutorial intent, but upon the effect to the defendant of the prosecutor's misconduct. I happen to agree with them -- although I (in 2011) would make the prosecutorial misconduct prong broader than they thought proper (in 1982). Regardless of the actual opinions in the Kennedy case, my point was directed at your logic -- not the state of the law.

Moreover, I didn't call anyone a Nazi. Nor did I even state or imply that it's a good thing when lawbreakers are not punished. Nice straw-man argumentation, though (with a bit of ad hominem thrown in for good measure). I merely pointed out a simple truth: the Framers of the Bill of Rights envisioned legal rules that had and still have the expected effect that some lawbreakers will not be punished for their crimes. All those search & seizure restrictions in the Fourth Amendment, the Double Jeopardy Clause, even the right to trial by jury, were established by the Framers with the obvious effect that some lawbreakers, because of those constitutional provisions, would evade punishment. You never seem to acknowledge this basic fact. Moreover, you seem to have a visceral hate regarding this basic fact about our Constitution -- at least when it comes to the non-prosecutors in our criminal justice system. In the past, you have, interestingly, been a strident supporter of unlimited prosecutorial discretion. With our system of prosecutorial discretion (unlike, for example, Germany's system -- no Nazi joke here, by the way), prosecutors have the unchecked ability to decide that lawbreakers should not be punished for their crimes. Do you make fun of this "laxity" too? No. Anything that enhances the power of prosecutors seems to be fine with you. Anyone in the system who acts as a check on prosecutors, well, to you, that's another matter.

Finally, as for the costs of a second prosecution, I care very much about them. This is a waste of limited taxpayer resources. If you think it's a good use of limited taxpayer resources, you're entitled to your opinion. As am I. But why are you so hostile to one taxpayer's concerns about costs? Is it because you simply think like an ordinary bureaucrat: "Costs to the taxpayer? Who cares? It's just more money for me and people like me. But what I really can't stand is a challenge to my power."?

Each one of these prosecutors is expensive. And, even if they aren't lying about violating the court's exclusion order (which I doubt), they were incompetent. So while I don't intend to write the AG, why does it bother you so much that I think this is a waste of money? Is it because you don't even want to acknowledge the real budgetary constraints that limit the power of prosecutors?

As for a remedy for IAC, how about a disciplinary review by the applicable State Bar? Same for these prosecutors, too. But the DoJ has fought for years, trying to keep the State Bars from examining federal prosecutor misconduct. Why do you think that's true? Are they being "lax" on lawbreakers too?

Please keep writing on this site. As I've said before, you're a wonderful living example of what the Framers of the Bill of Rights were worried about.

Posted by: Mark Pickrell | Aug 25, 2011 12:06:41 AM

For those who want to put the Clemens case in perspective, here are some thoughts. At the time of the Kennedy decision (1982), defendants were in a bind in Double Jeopardy cases whenever a prosecutor engaged in misconduct. They could simply object to the misconduct, and, if they were convicted, appeal. The result, if successful on appeal, would be another trial -- i.e., a second round of jeopardy. Or, they could move for a mistrial, which, under the general rule, would mean that they got tried again -- i.e., a second round of jeopardy. So, in the main, the DJC was subverted by prosecutorial trial misconduct. The four in the minority in Kennedy wanted to preserve a line of cases -- rather unclear and limited cases, to be honest -- that allowed (or seemed to allow) a court to reject, at least in theory, a second trial after granting a motion for a mistrial for prosecutorial misconduct. As Bill Otis is gleeful to point out, the majority in Kennedy (5-4) rejected the minorities' efforts to allow a defendant to move for a mistrial and not be retried (in the absence of proof of subjective prosecutorial intent of "goading").

Now we have the Clemens case, where the judge, sua sponte, ordered a mistrial for prosecutorial misconduct. The defendant did not move for the mistrial (the key question in the Kennedy line of cases). So what's the rule going to be? We have yet to find out. But, over the course of years, possibly in this case but certainly in others, there will be fights about at least two major questions: 1) the necessity of proof of prosecutorial intent (this issue was not decided in Kennedy, at least insofar as future Courts may choose to limit that case to instances in which a defendant moves for a mistrial); and 2) whether the defendant has an obligation to object to the prosecutorial misconduct or to the court's sua sponte order of a mistrial. The government will continually press each of these issues, in an effort to avoid or limit a ruling that permits a court to order a mistrial for prosecutorial misconduct and then refuse to permit a retrial.

My original argument above -- that prosecutorial intent has nothing to do with the harm to the defendant of double jeopardy or the countervailing interest of society, in cases of prosecutorial misconduct -- was an argument based on logic. It was not an argument about what the law is. Here, the law isn't even established (contra, et pace, Bill Otis), at least for cases in which a defendant does not move for a mistrial. So maybe someday someone will care about logic, the purposes of the Double Jeopardy Clause, prosecutorial misconduct, the problems of proving or inferring subjective intent, etc. We'll see. Because criminal law, particularly constitutional criminal law, takes so long to develop, it will take decades to work these issues out.

Personally, I believe that prosecutorial misconduct that is sufficient to grant a mistrial -- either sua sponte by the judge or on motion of the defendant -- is sufficient and adequate grounds to bar retrial of the defendant under the DJC. To me, it's not really all that complicated. I know many will disagree, and many of those will try to make the law as complicated and convoluted as possible. So be it. It's always been that way, and it always will be.

Posted by: Mark Pickrell | Aug 25, 2011 9:34:09 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB