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July 14, 2011

Feds cause mistrial in Clemens perjury trial...

should they get to try again?

UPDATE:  Here now are details about just how federal prosecutors messed up via this updated AP report, as well as details on how Judge Walton (over?)reacted to the mess up:

The judge declared a mistrial Thursday in baseball star Roger Clemens' perjury trial after prosecutors showed jurors evidence the judge had ruled out of bounds.     U.S. District Judge Reggie Walton said the prosecutors had made a grave mistake.  And he said Clemens could not be assured a fair trial after jurors were shown evidence against the court's orders in the second day of testimony....

Walton scheduled a Sept. 2 hearing to determine whether to hold a new trial. He told jurors he was sorry to have wasted their time and spent so much taxpayer money, only to call off the case.

"There are rules that we play by and those rules are designed to make sure both sides receive a fair trial," Walton told the jury, saying such ground rules are critically important when a person's liberty is at stake.  "If this man got convicted, he would go to jail," Walton said. 

He said that because prosecutors broke his rules, "the ability with Mr. Clemens with this jury to get a fair trial with this jury would be very difficult if not impossible."...  Prosecutors suggested the problem could be fixed with an instruction to the jury to disregard the evidence, but Walton seemed skeptical.  He said he could never know what impact the evidence would have during the jury's deliberations "when we've got a man's liberty at interest."....

Walton interrupted the prosecution's playing of a video from Clemens' 2008 testimony before Congress and had the jury removed from the courtroom.  Clemens is accused of lying during that testimony when he said he never used performance-enhancing drugs during his 24-season career in the Major Leagues.

One of the chief pieces of evidence against Clemens is testimony from his former teammate and close friend, Andy Pettitte, who says Clemens told him in 1999 or 2000 that he used human growth hormone.  Clemens has said that Pettitte misheard him. Pettitte also also says he told his wife, Laura, about the conversation the same day it happened.

Prosecutors had wanted to call Laura Pettitte as a witness to back up her husband's account, but Walton had said he wasn't inclined to have her testify since she didn't speak directly to Clemens.  Walton was angered that in the video prosecutors showed the jury, Rep. Elijah Cummings, D-Md., referred to Pettitte's conversation with his wife.

"I think that a first-year law student would know that you can't bolster the credibility of one witness with clearly inadmissible evidence," Walton said.  He said it was the second time that prosecutors had gone against his orders -- the other being an incident that happened during opening arguments Wednesday when assistant U.S. attorney Steven Durham said that Pettite and two other of Clemens' New York teammates, Chuck Knoblauch and Mike Stanton, had used human growth hormone.

Walton said in pre-trial hearings that such testimony could lead jurors to consider Clemens guilty by association.  Clemens' defense attorney objected when Durham made the statement and Walton told jurors to disregard Durham's comments about other players.

There was no objection from Clemens' team during the Laura Pettitte reference, but the judge stopped the proceedings, called attorneys up to the bench and spoke to them privately for several minutes.  Hardin pointed out during that time, the video remained frozen on the screen in front of jurors with a transcript of what was being said on the bottom....

The judge eventually told the jurors to leave while he discussed the issue with attorneys in open court. "Government counsel should have been more cautious," Walton said, raising his voice and noting that the case has already cost a lot of taxpayer money.  He then left the courtroom and said he would go consult with a colleague on what to do.

There are so many interesting dimensions to this development, including the notable (pre-)sentencing indication that Judge Walton will be imposing prison time at sentencing if Rogers Clemens gets convicted on the perjury charges he is facing.  

Notably, the early comments to this post all suggest that Judge Walton should not allow the feds to try Rogers Clemens again.  But the mess up by the feds here hardly seem based on this press account to super-extreme efforts to undermine Clemens' right to a fair trial.  I think allowing Clemens to now walk would be something of an unfair windfall for a defendant who is accused of a serious charge of lying to Congress.  But I am also somewhat sympathetic to the notion that, at this stage, the Rocket has already now been punished enough (especially given that Rusty Hardin hardly comes cheap and will surely have the meter still running as the legal  fall-out from this mistrial plays out over the coming months).

July 14, 2011 at 12:32 PM | Permalink


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No, but that won't stop them.

The way I see it anything other than a conviction or a defense caused mistrial should result in the charges being dismissed with prejudice.

From what I've read the prosecutors here were warned at least twice before the time that prompted the mistrial. What punishment other than dismissing the charges can protect against such behavior?

Posted by: Soronel Haetir | Jul 14, 2011 12:39:39 PM

i agree with you soronel. i think multiple bits at the apple are illegal under our system of double jeopardy. The state had it's chance and screwed it up AFTER notice. sorry no more shots!

but like you i think that won't stand in thier way! especialy when they have been know to take someone to trial 5-6 times BEFORE managing to get a coviction.

Posted by: rodsmith | Jul 14, 2011 1:12:12 PM

Should they get another shot? No. However, we've recently seen the Blagojevich trial on re-do be allowed and also successful. The AUSA was warned, and his blatant disregard for judicial ruling caused the trial to be halted.

The AUSA should definitely not get another crack at this. I'm not sure another trial should be granted at all considering the performance the US Attorney allowed his assistant to give. Fair trial seems impossible in light of this obvious prosecurotial misconduct.

IMHO, they already blew their shot at Clemens. Granting a new trial seems like rewarding bad behavior. I invite thoughts, statutory/procedural codes, and legal precedents would be greatly appreciated.

Posted by: Eric Matthews | Jul 14, 2011 1:36:10 PM

Would you all say the same if it were a murder trial? Why should likely criminals be cut loose because of a prosecutorial error? Throw the prosecutor in jail for a few days for contempt if you like. But I say start the trial again and do it right.

Posted by: alpino | Jul 14, 2011 2:02:23 PM

PUBLIC POLICY. The purpose of prosecuting Clemens is because his lying was so high profile.

But NOW, the government'S misconduct is also high profile.

We want to generally deter perjury -- this cannot be argued. But I think it is far more important to deter government misconduct.

Even if he is guilty, the public benefit of dismissing this case is huge. IT WILL HAVE AN IMMEDIATE EFFECT ON HOW CAREFUL PROSECUTORS ARE.

Although I was for his prosecution, I am not for dismissal of the indictment, with prejudice.

Posted by: chris | Jul 14, 2011 2:14:30 PM

Should read instead:

Although I was for his prosecution, I am NOW for dismissal of the indictment, with prejudice.

Posted by: chris | Jul 14, 2011 2:15:30 PM

Personally, I think a retrial should be barred, because prosecutors have to have been aware that they were focusing jury on inadmissible evidence. But under double jeopardy law, if the defense requests a mistrial based on prosecutorial misconduct, a retrial is permitted unless the court determines that the prosecution intentionally provoked the mistrial. Oregon v. Kennedy, 456 US 667. Here, prosecutors may well have been trying to gain an unfair advantage, but there's no way, at the very beginning of the trial, that they actually wanted a mistrial.

Posted by: Andrew Fine | Jul 14, 2011 2:20:20 PM


Given that I believe most felons should be executed I would also say that prosecutors need to be held to the highest possible standard. A few days in jail for contempt just doesn't cut it. Especially where, as here, the conduct was repeated after warnings.

With the way federal prosecutors watch their conviction numbers something that causes them to actually lose a case would make a much greater impact than a few days to think about their sins.

It may be somewhat surprising given my stance on execution that I don't particularly fear crime (I see it much more as an indication that the criminal has given up living in society, so society should give up on the criminal). I do however very much fear government and its employees that are not held to account for their conduct.

Posted by: Soronel Haetir | Jul 14, 2011 2:36:37 PM

Although Bill Otis has yet to post his defense of the Department of Justice and all the reasons why the prosecutors actions don't rise to level of intentionally provoking a mistrial , Oregon v. KennedyI suspect he will be right. The problem is that standard is virtually impossible to meet.

Posted by: Steve Prof | Jul 14, 2011 2:44:41 PM

I agree that a retrial ought to be barred, but likely wont be under the absurd Oregon v. Kennedy standard. However, if Judge Walton declared the mistrial sua sponte, US v. Jorn might well bar a retrial. The article is silent about this, but mentions that the defense did not object to the testimony that set Judge Walton off, so it seems possible.

Posted by: Dan | Jul 14, 2011 3:08:07 PM

Congratulations to Steve Prof and especially Andrew Fine for knowing and actually pointing to the governing law, Oregon v. Kennedy. As Mr. Fine notes, "... there's no way, at the very beginning of the trial, that they actually wanted a mistrial." That being the case, under Kennedy's holding, it would be error to forbid a retrial.

Posted by: Bill Otis | Jul 14, 2011 3:10:48 PM


I would be interested in your thoughts, and those of others, on the judge's actions and comments here. I agree that a re-trial is likely permissible under Oregon v. Kennedy. What i find interesting is that the judge declared a mistrial before the defense even objected to the evidence, and then indicated that a conviction "would" carry jail time. Does that pose a problem of tainting the future jury pool? All in all, I find this to be a very strange and fascinating dveelopment.

Posted by: defendergirl | Jul 14, 2011 3:21:17 PM

I am curious as to what Bill Otis thinks of the Oregon v. Kennedy standard? It should be a high standard, but is this one too high ? Bill, your thoughts please.

Posted by: Steve Prof | Jul 14, 2011 3:21:45 PM

Steve Prof --

"I am curious as to what Bill Otis thinks of the Oregon v. Kennedy standard? It should be a high standard, but is this one too high ? Bill, your thoughts please."

I am reliably informed as of May 6 as follows: "There you go again Otis....you are way too entertaining by taking yourself so seriously as if anyone but you cares what you think."

I wonder who wrote that.

Still, better to let bygones be bygones, until and unless evidence appears that they're not so bygone.

As to your question: Oregon v. Kennedy is nearly 30 years old, and has not to my knowledge been seriously challenged. If one thinks, as I do, that society has a weighty stake in seeing wrongdoers brought to book, then barriers to retrial should be interpreted narrowly.

From what I can see in the news reports, the prosecutor's missteps here were slight. My guess is that he was taken thoroughly by surprise by Walton's ruling.

For those who want to get exercised about Oregon v. Kennedy, however -- which may or may not include you -- they can get even more exercised if they look at who argued the case for the United States as amicus.

For those who don't want to get exercised about it, there is the fact that the government got all nine votes, with the liberals (including Brennan and Marshall) concurring in the judgment.

Posted by: Bill Otis | Jul 14, 2011 4:08:07 PM

defendergirl --

Like you, I immediately spotted Walton's remark that a conviction "would" carry jail time. I'm quite sure that this does not taint any future jury pool; indeed I suspect only a small portion of the population will hear about that particular remark, much less remember it.

What I do think is that Walton should now recuse himself from sentencing. Indeed I think this is pretty obvious. He has shown unmistakably that he thinks jail is in the offing, before he's heard 90% of the government's case or ANY of the defense case. That is called P-R-E-J-U-D-G-M-E-N-T.

I don't even think it a close question whether Judge Walton can sit on the sentencing. He can't.

Posted by: Bill Otis | Jul 14, 2011 4:16:16 PM

Bill, I agree with you on recusal. The judge tipped his hand and if the defense so moved, the judge would probably recuse himself or arguably create error for failing to do so. But I think the defense may like this judge--given his ruling and want to him .

Posted by: Michael R. Levine | Jul 14, 2011 6:30:32 PM

Michael --

The problem with Walton is that he's mercurial. He'll snap at one side one day and at the other the next.

But one way or the other, he can't sit on this sentencing. It's as clear a case of prejudgment as you'll ever see.

Posted by: Bill Otis | Jul 14, 2011 6:56:59 PM

At a minimum, how about a motion to prohibit a retrial on double jeopardy grounds and if it is denied, appeal it pretrial under Menna v New York principles. The primary interest protected by the double jeopardy clause is the interest in not being forced to go to trial twice. Pretrial appellate review of double jeopardy claims is allowed because if a defendant has to wait until after he is tried to see if he can be tried, then the double jeopardy clause is meaningless.


Posted by: bruce cunningham | Jul 14, 2011 7:57:38 PM

Bill, I am back on my meds :) Gee...you actually save prior remarks -- interesting. I doubt the remark- which I am sure J. Walton regrets, is ground for recusal so long as he carefully considers the 3553(a) factors and indicates that while that was he was leaning towards incarceration he has evaluated the sentencing factors. I would think that most judges have definite leanings about incarceration/probation about most crimes but work hard to balance those leanings by fairly applying the 3553(a factors ion the specific case. Having said that justice and recusal are also about the appearance of fairness and that could probably be reasonably questioned here -- so you may be right - again!

Posted by: Steve Prof | Jul 15, 2011 2:44:14 PM


I'm intrigued by your prejudgment/recusal point. I'd certainly be happy to make that argument. But I'm not convinced it wins, and I certainly don't think it's a slam dunk.

The judge's statement (according to msnbc.com): “If (Clemens) is convicted,” Reggie Walton said, “knowing how I sentence, he goes to jail."

The "knowing how I sentence" is key. I don't think he was saying he had already decided RC would go to jail. To me, it reads as though he was saying, "I'm basically a guidelines judge--and since the guidelines here call for jail, if he gets convicted, that's what he's probably getting." It doesn't seem to me he's prejudged Clemens individually; rather, he appears to have pre-judged whether he's going to apply 3553(a) and the parsimony clause after Booker rather than continue to adhere to the guidelines.

Does a judge's comment that he generally follows the guidelines and is unlikely to sentence outside them mean he's not qualified to sentence? I'd be happy to make the argument, but I'd be (pleasantly) surprised if I won it. Knowing how you feel about the guidelines, Bill, I'm happy to hear your view on this one but find it a little surprising. [Or does it change depending on the "knowing how I sentence" quotation? It's been left out of some press stories, and appears to have been misreported in the AP count Doug quotes above.]

Posted by: Def. Atty. | Jul 15, 2011 3:03:04 PM

Steve Prof --

"Gee...you actually save prior remarks -- interesting."

Maybe taking responsibility for prior remarks is the thing to do rather than worrying about who saves them, ya think?

Not that I save them, which I don't. But I remember them, or some of them. Something wrong with having a memory?

"Having said that justice and recusal are also about the appearance of fairness and that could probably be reasonably questioned here -- so you may be right - again!"

The quotation that I saw was that, if convicted, Clemons would go to jail. That is a prejudgment of the sentence and requires that another judge do the sentencing.

Posted by: Bill Otis | Jul 15, 2011 3:55:31 PM


Might be prejudgement if you quoted Judge Walton correctly ....haven't seen the quote so I don't know.

Posted by: Steve Prof | Jul 15, 2011 7:07:46 PM

Steve Prof --

The exact quotation from Doug's entry is: "'If this man got convicted, he would go to jail,' Walton said." That's the last line in the third paragraph of the excerpt.

I based my assessment on that quotation.

Posted by: Bill Otis | Jul 15, 2011 7:20:54 PM

Bill, ya think you ought to check your source before you jump to a conclusion...it appears your "assessment" was based on a inaccurate quote. I doubt there will be a recusal and not reversal for not unless you are quickly appointed to to the Circuit:)

Posted by: Steve Prof | Jul 15, 2011 7:27:06 PM

"That is a prejudgment of the sentence and requires that another judge do the sentencing."

By whose motion?

Posted by: Michael Drake | Jul 15, 2011 7:54:30 PM

Steve Prof --

"Bill, ya think you ought to check your source before you jump to a conclusion[?]"

It wasn't a jump and source was the excerpt of the AP story Doug quoted. I am content to rely on that and shall continue to do so. You are free to explain what reasons commenters have to view either Doug or the Associated Press as so unreliable as to need checking.

Posted by: Bill Otis | Jul 15, 2011 11:00:38 PM

Michael Drake --

I see where you're coming from, but I think the more likely prospect is that the motion will come from the defense at the end of the guilt phase. Ordinarily, for a defendant like this, the defense would have a good shot at a non-jail sentence through a departure. Where Walton has all but said he's going to impose a jail sentence, I, as defense counsel, would want another judge.

The prosecutor might conceivably make the motion, to avoid an appeal based on the district court's prejudgment, but that's unlikely. The USAO is an institutional litigant, and has already ticked off this judge. Making such a motion poses the risk that he'll be ticked off at the government for a long time.

Posted by: Bill Otis | Jul 16, 2011 11:37:12 AM

If you tried as many cases as you have implied, I am sure you had press coverage that was not 100% accurate - in most of your trials covered by the press. I know that's been my experience in over a hundred federal trials. So, I do not jump to legal conclusions based on initial news reports. I would be like judging the legality of the killing of Osama Bibn Laden without knowing the facts - which changed daily for a while.

Posted by: Steve Prof | Jul 16, 2011 1:36:07 PM


Wouldn't leaving the motion under after a guilty verdict risk a ruling of wavier? I thought arguments were supposed to be made as soon as they could be reasonably anticipated (not that I agree with that rule, but it seems to come up in a number of contexts).

Posted by: Soronel Haetir | Jul 16, 2011 1:43:04 PM

Soronel --

Ordinarily, you would be right -- waiting to make the motion would risk a finding of waiver. But not here. Since the motion goes only to impariality at sentencing, it is not ripe until we know there WILL BE a sentencing, and we don't know that now, since there has been no verdict and, of course, Clemens might be acquitted. But it's a good question. I think you, as a layman, have a better feel for law than some of the lawyers who post here.

Posted by: Bill Otis | Jul 16, 2011 3:36:35 PM

Steve Prof --

For the discrete purpose of making comments on this blog, I have relied and will continue to rely on the accuracy of what Doug posts.

Speaking of doing a little research, you might take your own advice. I appeared often in court, but generally not in district court. I was head of the Appellate Division in the USAO for EDVA. This is not exactly a fact I have hidden; indeed, I have been accused of "bragging" about it.

I was interested to hear that you've done so many trials. It's my experience that the snide and belligerent tone you have often adopted with me goes over like a lead balloon in court, whether the circuit or district court. Maybe you could experiment with using your better decorum here, d'yathink? Would that hurt so much?

Posted by: Bill Otis | Jul 16, 2011 3:49:18 PM

"I see where you're coming from."

Indeed you do.

Posted by: Michael Drake | Jul 16, 2011 4:48:19 PM

I suppose you used the "d"yathink" in your appellate briefs? :) Actually, you are right about what goes over in court but this is a blog - and it's just too much fun and sport to poke at your self-rightous opinions...often some what informed and often so much hot air and hooey.

Posted by: Steve Prof | Jul 16, 2011 5:56:27 PM


That's why I called it a 'risk'. I can see your argument but I can also see a judge saying that the motion should have been made earlier. There are lots of Batson cases in that vein for example. And under the abuse of discretion standard that I'm pretty sure would get applied to an appeal of such a denial I don't see an appeals court reversing. Plus of course the appeal itself would potentially tick the judge off even more.

I would especially think that where your goal is actually to replace the judge (rather than having some hidden motive but not really intending to get the judge to recuse) that you are more likely to get the requested relief if you bring up the issue as early as possible, rather than forcing another judge to have to familiarize themselves with the proceedings. Although perhaps guilt and sentencing are discrete enough that making a clean break at that point won't be unduly burdensome.

Posted by: Soronel Haetir | Jul 16, 2011 6:35:48 PM

Steve Prof --

I'll rephrase slightly. Maybe you could experiment with using your better decorum here, do you think? Would that hurt so much?

I don't expect a blog to reflect courtroom practice, but I don't expect bottom fishing either. Experienced lawyers should behave as professionals and abjure a superior tone. Many defense counsel here do just that and better, and my energy is is going to be reserved primarily for them.

Like most people with an outside life, I have better things to do than engage here with those who just want to be snide; who are interested primarily in persons rather than issues; who seldom if ever put up an analytical and substantive argument; and who want to have what they very oddly view as "fun and sport" speaking like a poorly behaved 13 year-old.

Posted by: Bill Otis | Jul 16, 2011 6:54:23 PM

Michael Drake --

In an only slightly different universe, you and I would have been college pals. You would have been the partying, push-the-envelope wild man; I would have been your nerdy sidekick.

Posted by: Bill Otis | Jul 16, 2011 6:57:15 PM

Bill, I am happy to experiment but I could never master your self-righteous tone.

Posted by: Steve Prof | Jul 16, 2011 7:40:45 PM

I could pretend to be a caring bleeding heart liberal but it would be no more than an act. And probably not a very entertaining one at that.

Posted by: Soronel Haetir | Jul 16, 2011 9:13:28 PM

Steve Prof --

"Bill, I am happy to experiment but I could never master your self-righteous tone."

I see your experiment lasted for half a sentence.

I gather that you have no intention of conducting yourself with professional or even adult manners here. If I'm wrong about that, I'll be happy to see a sustained demonstration of it.

Posted by: Bill Otis | Jul 17, 2011 12:39:59 AM

Soronel --

Your straightforward quality is one of the things that makes your comments always worth reading.

Posted by: Bill Otis | Jul 17, 2011 12:43:36 AM

Boy, you go away for the weekend and every thread descends to the usual level of sniping. Unfortunate.

I certainly didn't suggest, or mean to, that every AP story or Berman post needs extra fact-checking. It's certainly the norm to respond to the story as reported, and Bill, taking the story as it was reported in Doug's AP quotation here, I agree with your view about prejudgment.

But I'm sincerely interested in whether and how your view changes based on the judge's actual statement from the bench. AP didn't get it all, but Reuters, Bloomberg, and The Sporting News did (hey, it's a baseball story). Now the transcript is available at the Houston Chronicle's Clemens trial blog.

Here's Judge Walton's actual comment, in response to a government request to submit briefs before a mistrial was granted (7/14/11, p. 50, lines 14-19): "You're not going to be able to convince me. Because if this man got convicted, from my perspective, knowing how I sentence, he goes to jail. And I'm not going to, under the circumstance, when this happened, put this man's liberty in jeopardy. He's entitled to a fair trial; in my view, he can't get it now."

Does the fact that the judge's comment was delivered "from my perspective, knowing how I sentence" change your view about prejudgment? I think it moves it away from prejudgment of the individual case and toward a general comment on the probable result in light of guidelines-friendly sentencing. As far as requiring recusal, I think at the least it's less of a slank dunk.

And, hypothetically, if the Judge had said, "As you know I typically follow the guidelines, and if he's convicted of the charges in the indictment, the guidelines call for jail, so his liberty is at stake," would that amount to prejudgment that should keep the judge from sentencing? I don't think it would, even though it would represent a blanket prejudgment about the applicability of the guidelines--one that I think many judges hold, though they vary in whether they say so openly.

No heckling here. It's a nuanced issue and especially given the strength of your initial position and your general view about the guidelines, I'm interested in how this affects your view of what is prejudgment (and at what degree it becomes disqualifying).

Posted by: Def. Atty. | Jul 18, 2011 2:01:55 PM

BTW the transcript is available at: http://blog.chron.com/clemens/2011/07/the-clemens-trial-transcript-read-for-yourself-what-led-to-the-mistrial/

It's quite a read. The prosecutors appear to have been of the view that since the references on the videotape to Ms. Pettite's statements were contained in Rep. Cummings' questions rather than in the witness's answers, that they did not fall within the court's pretrial ruling excluding Ms. Pettite's statements from trial.

Posted by: Def. Atty. | Jul 18, 2011 2:17:06 PM

Def. Atty. --

"As far as requiring recusal, I think at the least it's less of a slank dunk."

Being of the view that words matter, I agree with your assessment. The more attenuated the remark gets from, "If this man got convicted, he would go to jail," the less compelling the case for recusal.

Still, Walton shouldn't have said, and didn't need to say, a darn thing about sentencing. If as a judge I had made that error, I think the thing I would do now would be to acknowledge and apologize for it at the next hearing; assure counsel that I had made no decision about sentencing and would not until after I got the PSI (assuming a conviction); and say that if either counsel wanted me to recuse myself, I would do so, no hard feelings.

I think that's the right thing to do, and that it would make the rest of the trial more pleasant and less tense.

Posted by: Bill Otis | Jul 18, 2011 7:46:52 PM

I agree that saying anything about sentencing was unnecessary and had potential to open a can of worms. Acknowledgment and assurance at the next opportunity wouldn't be out of place. But I very much doubt there will be an apology or an offer to recuse. (And the defense isn't going to be pushing for any such thing, since they're happy with the mistrial and the momentum.)

Of course, if he decides Double Jeopardy bars retrial, this is all moot. But doubtful that he will, as you guys all covered back at the beginning of the thread.

Posted by: Def. Atty. | Jul 19, 2011 12:48:14 PM

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