Roger Clemens Asks Court to Dismiss Charges and Deny Retrial

Baseball giant Roger Clemens has filed his motion with the Court asking for the charges against him to be dismissed permanently, and to prevent the Government, on double jeopardy grounds, from re-trying him after his mistrial a few weeks ago.

Clemens' lawyers argue the case fits squarely within the Supreme Court's decision in Oregon v. Kennedy, which holds a retrial is banned if the Government deliberately provoked the mistrial because it thought it wasn't doing well and wanted a do-over. They write:

[T]he best evidence of the Government’s intent was provided in real time on July 14, 2011. In the heat of the moment when the misconduct was raised in court, the Government did not suggest, much less offer any evidence to support a suggestion, that the prosecutor’s misconduct was unintentional. Nor did the Government rebut the reasonable inference that the misconduct was intended to provoke a mistrial. Instead, the explanation that the Government provided—that the Government’s conduct was somehow excused because the defense did not immediately object—is entirely consistent with a finding that the prosecutors intended to “goad” the defense into asking the Court to start the trial over from scratch.


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.

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  • Display: Sort:
    It would be interested to read the reporter's (none / 0) (#1)
    by oculus on Sat Jul 30, 2011 at 10:57:33 AM EST
    transcript and see evidence introduced b/4 the prosecution played the video for the jury.  

    the transcript is (5.00 / 1) (#2)
    by Jeralyn on Sat Jul 30, 2011 at 11:33:25 AM EST
    Better link to trial transcript: (none / 0) (#3)
    by oculus on Sat Jul 30, 2011 at 11:59:45 AM EST
    it's the same and the link you (none / 0) (#9)
    by Jeralyn on Sat Jul 30, 2011 at 05:03:26 PM EST
    posted makes you read it inside a small window, which is why I uploaded it so you could read the whole thing. Why would you think the scribd link is better?

    Because when i clicked on your link (none / 0) (#11)
    by oculus on Sat Jul 30, 2011 at 05:42:16 PM EST
    it opened a blank screen.

    It opened fine for me (none / 0) (#15)
    by sj on Sat Jul 30, 2011 at 10:18:37 PM EST
    Maybe you need to load/update Adobe Acrobat?

    Fascinating, as defense counsel (none / 0) (#4)
    by oculus on Sat Jul 30, 2011 at 12:02:50 PM EST
    has no objection to admitting and/or publishing the video in question to the jury.  Then, after the court calls a side bar after the video is played to the jury, defense counsel sd. he couldn't, after agreeing to let the video into evidence, stand up in the presence of the jury, and object portions of the video violated the court's ruling on in limine motion.  Huh?  Of course he could.  

    On another point, the witness on the stand is the master of giving a speech when the question called for a "yes" or "no" answer.  And no one is objecting.  

    I have (none / 0) (#5)
    by lentinel on Sat Jul 30, 2011 at 12:04:50 PM EST
    to agree with Clemens.

    And gee - going after a great ballplayer for perhaps lying to congress about his use of steroids is NOTHING compared to Bush and Cheney definitely and purposefully lying to the entire country - the entire world - on television - sending us into ten years of hell.

    They are untouchable.
    Gotta move on.

    But Clemens... oooooh.

    Agreed (5.00 / 1) (#6)
    by msaroff on Sat Jul 30, 2011 at 01:06:37 PM EST
    The fact that Clemens is on trial, and Alberto "Abu" Gonzalez was given a get out of jail free card, is a travesty.

    I have to disagree. (none / 0) (#7)
    by Green26 on Sat Jul 30, 2011 at 02:36:17 PM EST
    The prosecution didn't intentionally try to get a mistrial. It make a mistake. The facts don't even come close to fitting within the cited case. Almost everyone thought that Clemens would get convicted, due to the expected testimony of his former best friend and other testimony.

    While I don't believe the government should be chasing steroid prosections, I do believe there needs to be enforcement of laws to prevent people from lying in situations where there is a law against such lying. In my view, Clemens blatantly lied to Congress. He didn't have to do that. Almost everyone agrees he was lying.

    I support the judge applying whatever law is applicable in this situation, but I can't imagine that the above cited case would give the judge a basis to stop further prosecution of the case.

    the prosecutor admitted it wasn't (5.00 / 1) (#10)
    by Jeralyn on Sat Jul 30, 2011 at 05:08:37 PM EST
    a mistake. Read the transcript. He tried to convince the Judge that Congressman Cumming's questions to Clemens that quoted verbatim Laura Pettitte's statements isn't the same thing as Laura Pettitte making the statement. He argued that since the clip he played was of Cummings asking Clemons about (and quoting directly from) Laura Pettitte's affidavit, not of Laura Pettitte herself saying the words, it didn't run afoul of the Court's July 7th order (page 2, footnote 2.) The prosecutor even tried to tell the judge that this issue hadn't come up before. The Judge didn't buy either. This was no mistake, it was the prosecutor pulling a fast one.

    More here. The only issue is why he did it -- was it to win or to cause the defense to object and ask for a mistrial?


    IMO, after reading the trial transcript, (none / 0) (#12)
    by oculus on Sat Jul 30, 2011 at 05:44:13 PM EST
    the prosecution played the video to get the favorable to the prosecution evidence in front of the jury come h*ell or high water.  A gamble.  Not to provoke a mistrial.  

    that's their only argument now (none / 0) (#14)
    by Jeralyn on Sat Jul 30, 2011 at 09:45:08 PM EST
    but as the Judge said, even a first year law student would have known better. To save the case, the prosecutor will have to claim he did it on purpose trying to win, which will make him (and DOJ) look sleazy, since it was such an obvious violation of the court's pre-trial ruling. If that's their defense, I think higher-ups at DOJ will make the decision to forego asking for a retrial. If they had any integrity, that's what they would do. "I cheated because I wanted to win" is hardly the image DOJ is looking for.

    It was a mistake in that (none / 0) (#13)
    by Green26 on Sat Jul 30, 2011 at 07:32:43 PM EST
    what the prosecutor did intentionally turned out to cause a mistrial and was thus a mistake, in my view. Didn't mean it was a mistake in the sense that a paralegal or technician goofed up or played the wrong segment.

    IANAL (none / 0) (#16)
    by sj on Sat Jul 30, 2011 at 10:21:15 PM EST
    But that seems to be some serious pretzel logic to justify a "win at any cost" mentality.