The Kennedy standard was intended to prevent the prosecution from forcing a mistrial when things are going badly for it, in the hope of improving its position in a new trial.

...The full record supports both: (i) a finding by a preponderance of the evidence that the prosecutor’s misconduct was intentional; and (ii) a reasonable inference that the prosecutor’s misconduct was intended to provoke a mistrial.

...The “objective facts and circumstances” in this case satisfy the Kennedy standard and support a decision that the Government published Mrs. Pettitte’s statements in continued violation of the Court’s pretrial orders with the intent of inducing the defense to object and seek a mistrial. The defense was then faced with an impossible choice of whether to try a tainted case to completion or to reluctantly seek a mistrial. The Double Jeopardy Clause is designed to protect criminal defendants from having to make such a choice. Accordingly, the Court should preclude re-prosecution of Mr. Clemens and dismiss the indictment with prejudice.

In determining the prosecution's subjective intent, Clemens points to the criteria listed by Justice Powell in his separate opinion in the Kennedy case, Powell wrote oftentimes, subjective intent isn't readily discernible, in which case, the court must look to the "objective facts and circumstances of the particular case” in determining intent, including:

(a) Whether the Government had a reason to provoke a mistrial because the trial was “going badly” for conviction at the time that the prosecutor acted;
(b) Whether the misconduct “was repeated despite admonitions from the trial court;”
[c] Whether the Government’s conduct was “clearly erroneous;”
(d) Whether the Government’s conduct was “intentional or reckless;” and
(e) Whether the Government provided any reasonable, good faith explanation” for its conduct at the time the conduct occurred.

....The Court also found Mr. Pettitte’s testimony, and any effort to bolster that testimony through statements to Mrs. Pettitte, to be “critical to the government’s case.” The Court’s pretrial exclusion of that evidence was a substantial blow to the prosecution. Unfortunately, the Government attempted to overcome this setback by inappropriately attempting to sneak the evidence in through the back door.

Why would the Government want a do-over badly enough to provoke a mistrial? Clemens argues:

...In sum, the record shows that the Government had a plausible reason to provoke a mistrial here. Not only would a new trial provide a clean slate on the setbacks listed above, but, like any second prosecution, it would also give the Government an opportunity to conduct a stronger voir dire, to reshape its case in the wake of the Court’s in limine rulings, and to rehearse its presentation of proof, thus increasing the Government’s chances of obtaining a conviction. Having provoked a mistrial by willfully ignoring this Court’s in limine rulings, the Government should not be afforded this second bite of the apple.

As further evidence that the Government acted intentionally, Clemens points to the prosecutor's first snafu, when he violated the court's order in opening statements by mentioning other players used steroids:

Another important indicator of whether the prosecutors intended to provoke a mistrial through their actions is whether there was a “sequence of overreaching” leading up to the misconduct. An isolated act of misconduct may tend to show the Government simply made a mistake, but bald violations of Court rulings on back-to-back days supports a finding that the Government intended to cause a mistrial (or intended to provoke the defense to ask for a mistrial).

The objective facts and circumstances here demonstrate that the Government engaged in a “sequence of overreaching” by repeating acts of misconduct that violated settled rules pronounced by this Court that govern the conduct of a prosecutor. The Government raised guilt by association concerns in violation of the Court’s pretrial rulings in its opening statement; the Government had to be warned to limit the testimony of Mr. Barnett to personal knowledge;85 and the Government published Mrs. Pettitte’s statements to the jury in “direct violation of the pretrial ruling I made in response to a motion in limine that had been filed by counsel for Mr. Clemens.

...Even with a single act of misconduct, Justice Powell indicated that Kennedy was a close call. In this case, the sequence of overreaching by the Government creates a strong inference of an intent to provoke a mistrial

Clemens asks the Court:

...In this case, is it plausible to believe that two highly experienced prosecutors, in a high profile case involving the expenditure of enormous government resources, would simply “forget” to conform witness testimony and government exhibits to critical in limine rulings made by this Court and then suffer a lapse of attention at the precise moment the testimony and exhibits are displayed to the jury? Although the question answers itself, at least four objective facts and circumstances here show that the publication of Mrs. Pettitte’s statements to the jury was no accident.

Clemens is right that this was no accident and the prosecutor acted intentionally. The prosecutor even admitted it, when he tried to justify what he did by saying he didn't think his introduction of the other player evidence in opening or the Pettitte evidence when questioning a witness ran afoul of the Court's order.

If the Court agrees, and I think it will, that its pre-trial rulings excluding the Petitte evidence were clear, it may just buy Clemens' argument. As I wrote earlier, if the Government was in doubt as to the scope of the court's order, it should have asked for a clarification rather than ignoring it and introducing the evidence.

What we have here is a prosecutor who, despite rulings from the judge that evidence is inadmissible, intentionally introduces it anyway, and tries to argue that it wasn't covered by the judge's ruling.

There is no inadvertence here. The prosecutor came up with a half-baked scheme, not once, but twice, during the first two days of trial, to get around a court's order and put evidence before a jury that had been ruled inadmissible, without telling either the court or the defense in advance of his intention. If he thought he found a way that either his comments about other players or Congressman Cummings' comments about Laura Pettitte were not covered by the court's ruling, he should have filed a motion to clarify the court's rulings and asked -- before putting the evidence before the jury.

It seems the Government intends to continue to argue that it misinterpreted the Court's pre-trial rulings, not on one issue, but on two, and it thought the evidence it sought to introduce was outside of the court's ruling. That strains credulity, especially by seasoned prosecutors, who not only had the pretrial hearing transcripts, but the court's written orders.

Still, the Court must find the Government's errors were not only intentional, but done with the intent to provoke a mistrial. If they were merely an attempt to sneak inadmissible evidence in through the back door in an attempt to increase their chances of winning, the Court may rule against Clemens.

Discerning the Government's intent in violating the Court's orders is key here. Was it to win, or to get a do-over? Only if it's the latter, will a re-trial be barred.