Roger Clemens Asks Court to Dismiss Charges and Deny Retrial

By Jeralyn, Section Crime in the News
Posted on Sat Jul 30, 2011 at 09:44:28 AM EST
Tags: Roger Clemens (all tags)

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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.

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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 opinio