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September 2, 2011

Roger Clemens to have to face retrial in April 2012

As detailed in this Washington Post report, a "federal judge ruled Friday that prosecutors will have another chance to try former star pitcher Roger Clemens on charges that he lied to Congress about taking performance-enhancing drugs."  Here is more:

The ruling came during a hearing before U.S. District Judge Reggie B. Walton, who weighed whether a retrial would violate Clemens’ Constitutional rights.  Walton said the decision was not an easy one, but he felt that he had no choice but to allow prosecutors to move ahead.  He set an April 17 trial date....

“While I am very troubled by what occurred and it was something that should not have taken place,” Walton said, “I just think that the current state of the law would not justify me concluding on the record we have in this case that the double jeopardy clause bars reprosecution.”

Earlier in the hearing, Walton had castigated government lawyers, saying he had “a hard time reaching any other conclusion” than prosecutors had intentionally disobeyed one of his orders when they introduced the barred evidence.

September 2, 2011 at 05:02 PM | Permalink

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given the judge's comments and the fact that the primary interest protected by the double jeopardy clause is the interest in not going to trial, I think Clemens should try to get pretrial appellate review of the ruling. Menna v New York and US v Abney provide, in my opinion, persuasive argument that under the circumstances here pretrial appellate review is appropriate. I was able to get pretrial review in the Fourth Circuit under a double jeopardy argument.

bruce

Posted by: bruce cunningham | Sep 2, 2011 6:01:19 PM

bruce --

The problem is that he can't win the interlocutory appeal even if he gets it. Under Oregon v. Kennedy, the decisive issue is the prosecutor's intent. That is a question of fact as to which the court of appeals is all but certain to defer to the district court.

For that same reason, the government was almost surely cooked on appeal had it gone the other way.

Right now, Walton is ticked at the government. If the defense appeals, he could get ticked at them. It's not worth the risk, particularly with the substantive law being as it is.

Posted by: Bill Otis | Sep 2, 2011 6:38:18 PM

well no offense bill but if the proseuctor's INTENT is what decides it! he's DONE!

based on this!

"Earlier in the hearing, Walton had castigated government lawyers, saying he had “a hard time reaching any other conclusion” than prosecutors had intentionally disobeyed one of his orders when they introduced the barred evidence."

sorry the judge should man up and tell the DA to kiss off. i told you NOT to do it! you DID IT anyway! kiss your trial GOOD BYE!

Posted by: rodsmith | Sep 2, 2011 9:02:28 PM

Rod,

I don't know why I'm bothering to respond to this, but the under the Oregon v. Kennedy standard the prosecutors have to intend to cause a mistrial, not just intentionally disobey the judge. I think that standard is far too lenient toward the government but it is what it is.

Posted by: Soronel Haetir | Sep 2, 2011 9:16:43 PM

well soronel i figure once the courts decided the defendents no longer needed "INTENT!" to comit a crime....you know the old what's sauce for the goose! thing!

that's what they tell defendants. you KNEW or SHOULD have known what you did was illegal.

well in a case like this.. the prosectuion was SPECIFICALLY TOLD NOT TO DO IT!

sorry they lose!

Posted by: rodsmith | Sep 3, 2011 2:50:35 AM

Bill, I would cert this one all the way to the supreme court and pitch (no pun intended) the cert petition to Scalia and Thomas. I believe a coalition of justices akin to the Apprendi mix of conservatives and liberals is possible. Judge Walton said "It doesn't seem fair." That would appeal to Breyer,et al. For Scalia and Thomas, come at from what would the Founders say? What was the original purpose of the double jeopardy protection? To prohibit the government from making a defendant run the gauntlet twice, due to no fault of his own. Which is exactly what is happening here.

bruce

Posted by: bruce cunningham | Sep 3, 2011 7:41:40 AM

Bruce --

There's a problem with the theory that the defendant should not have to face a second trial when it comes about through no fault of his own. To embrace that view, the Court would have to overthrow, not only Oregon v. Kennedy, but much older precedent allowing for re-trials when there's a hung jury. It would also prevent a retrial when the defense lawyer or judge drops dead of a stoke in mid-trial -- also things for which the defendant is not responsible.

The other problem that I can think of offhand is that there's no circuit conflict of which I'm aware.

Scalia and Thomas are literalists, but not to that extent. Prosecutors and defense lawyers make inadvertent mistakes all the time, and every now and again one of them will require a mistrial. Social systems have to be designed to be more sturdy than to crumble under the weight of error (error being inevitable). Given that much; and given the strong societal interest in bringing the guilty to book; and given the absence of any SCOTUS opinion significantly criticizing Oregon v. Kennedy over the last 30 years, I doubt there are any votes for cert, and there is something to lose (Walton's good will) by trying.

Posted by: Bill Otis | Sep 3, 2011 9:59:07 AM

Bill:

Where you and I differ is the severity of the case. Yes, he may be re-tried, but if found guilty of lying to Congress, he should be fined no more than $100 and let the sportswriters decide his Hall of Fame qualifications.

It is more of a crime for my representatives to lie to me (their boss), than for someone to lie to a Kangaroo Court.

Posted by: albeed | Sep 3, 2011 11:27:41 AM

Bill, I agree with you that I overstated the "no fault of his own" standard. There is a case in NC I agree with. A big snowstorm closed the courthouse in Asheville midtrial and the judge declared a mistrial. That was no fault of the def, but I agree with the court of appeals in holding that the second trial can proceed. In NC, by statute, a judge must make a "manifest necessity " finding to avoid double jeopardy. Where is the manifest necessity in the Clemens case.? The prosecutor did something the judge told him not to do, tainting the jury. I don't think that is akin to a snowstorm or a stroke by the judge.

bruce

Posted by: bruce cunningham | Sep 3, 2011 1:22:08 PM

Also, from the comments I've been reading in the press coming from Judge Walton, I don't think he would be offended at all if the defense takes the issue up pretrial. He would probably be pleased.

bruce

Posted by: bruce cunningham | Sep 3, 2011 1:24:47 PM

Bruce,

Unfortunately I do think Scalia and Thomas would let historical practice control rather than the text and as far as I can tell from reading what material is available to me hung juries and possibly low level prosecutorial misconduct would not in fact have triggered the prohibition against double jeopardy. Just because I think that's the standard that should be used does not mean it wouldn't be a major change from even founding era practice.

Posted by: Soronel Haetir | Sep 3, 2011 2:28:56 PM


bruce --

The standard I would shoot for, if I were devising defense strategy to move the ball away from Oregon v. Kennedy, is that a retrial should be forbidden whenever the first trial had to be aborted because of "significant prosecutorial error." That takes care of the snowstorm and, more importantly as I see things, takes care of the case where the prosectorial error is nontrivial but clearly inadvertent. On the other hand, it's a gain for the defense, because you get rid of the very tough requirement that the prosecutor needs to have intended to bring about a mistrial -- a standard that is very, very hard to meet.


Posted by: Bill Otis | Sep 3, 2011 5:24:03 PM


bruce --

The standard I would shoot for, if I were devising defense strategy to move the ball away from Oregon v. Kennedy, is that a retrial should be forbidden whenever the first trial had to be aborted because of "significant prosecutorial error." That takes care of the snowstorm and, more importantly as I see things, takes care of the case where the prosectorial error is nontrivial but clearly inadvertent. On the other hand, it's a gain for the defense, because you get rid of the very tough requirement that the prosecutor needs to have intended to bring about a mistrial -- a standard that is very, very hard to meet.


Posted by: Bill Otis | Sep 3, 2011 5:24:34 PM

"[The prosecutor's intent] is a question of fact as to which the court of appeals is all but certain to defer to the district court."

Well, but did Walton actually make the relevant factual finding? What he said (according to the article, anyway) was, "I just think that the current state of the law would not justify me concluding on the record we have in this case that the double jeopardy clause bars reprosecution." In other words, Walton is saying that the law is a bar to his making a finding here that the prosecutor intended to goad the defense into moving for a mistrial. That's a legal question, not a factual one.

Or am I missing something?

Posted by: Michael Drake | Sep 6, 2011 2:02:10 PM

For once I agree with Bill (@5:24), but wonder if it isn't arguable that Oregon v. Kennedy shouldn't be applicable in the first place? It relates to cases where the defense moves for a mistrial, aiming to keep defendants from benefiting from gamesmanship. Here, the defense didn't move for a mistrial; the judge did it of his own accord because of egregious, in his view intentional prosecutorial misconduct. Maybe it's easier just to claim "significant prosecutorial error," but the standard being applied seems to me to come from a very different set of fact circumstances than exists here.

Posted by: Gritsforbreakfast | Sep 6, 2011 3:07:16 PM

Michael Drake --

"Walton is saying that the law is a bar to his making a finding here that the prosecutor intended to goad the defense into moving for a mistrial."

There's your mistake. The law does not bar Walton from making any factual finding he thinks is true. The law says only that ABSENT a factual finding that the prosecutor intended to bring about a mistrial, retrial is permitted.

The reason Walton didn't say that the government sought to bring about a mistrial is that it wasn't true. One may assume that the government intentionally flouted Walton's suppression ruling (that's not my assumption, but people could entertain it), but that wouldn't be sufficient. Even egregious misconduct does not derail a mistrial unless the intent behind it was to abort the ongoing trial.

I haven't seen a ghost of a reason to think that the government intended to abort the trial, which was then in its second day, with no adverse or even unexpected developments that I know about. And I can't think of any reason that the government would WANT to abort the trial at that stage and under those conditions.

Posted by: Bill Otis | Sep 6, 2011 7:11:13 PM

"The law does not bar Walton from making any factual finding he thinks is true."

So if Walton thought it did, he's mistaken on the law, right?

Posted by: Michael Drake | Sep 6, 2011 8:04:16 PM

hmm

"The reason Walton didn't say that the government sought to bring about a mistrial is that it wasn't true. One may assume that the government intentionally flouted Walton's suppression ruling (that's not my assumption, but people could entertain it), but that wouldn't be sufficient. Even egregious misconduct does not derail a mistrial unless the intent behind it was to abort the ongoing trial.

I haven't seen a ghost of a reason to think that the government intended to abort the trial, which was then in its second day, with no adverse or even unexpected developments that I know about. And I can't think of any reason that the government would WANT to abort the trial at that stage and under those conditions."

in a nut shell

SO WHAT!

if i didnt' INTEND to drive my car over a bunch of school kids!
if i didn't PLAN to drive my car over a bunch of school kids!

guess what!

they are STILL gonna shove me UNDER THE JAIL!

same thing applies here

they were TOLD not to do it! THEY DID IT! trial is OVER!

Posted by: rodsmith | Sep 7, 2011 12:12:54 AM

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