Roger Clemens' Prosecutors Seek Retrial

The Government has filed its brief in support of a retrial of baseball giant Roger Clemens (available here.) They say their "inadvertent mistake" of failing to redact their trial exhibit of Congressman Cumming's testimony restating Laura Pettitte's statement about her husband's comments to her about a conversation with Clemens was not done for the purpose of goading the defense to request a mistrial.

They also claim they thought the trial was going well. As support, they include a blog post and a news article. I wonder if either author was in the courtroom for the trial.

Not explained: Why the prosecutor didn't stop the playing of the tape the minute he realized Laura Pettitte's statement was on it. All the Government says is, well, the defense didn't either. Considering the judge had just ruled days before Laura Pettitte's statements were inadmissible, the prosecutor should have stopped it immediately, knowing he was introducing banned material.

Also not addressed: The defense claim that they had repeatedly asked for the revised tape exhibits and the Government kept putting it off. [More...]

From the mistrial hearing transcript:

Motions in limine hearing, July 5th, the day after the holiday. After that date, several times, including on July 11th, and I invite counsel to disagree with me if he does, but on as recently as July 11th at 3:11 p.m., is when we finally got the government's marked exhibits. It's not that we've had them for weeks and weeks and weeks. We never got them despite repeated requests, please give us your marked exhibits, and I don't think government counsel will disagree, until the 11th Hour. And then they moved them in rapidly this morning, and then suddenly we see it on the screen.

So, post Your Honor's rulings, we asked for new exhibits. So, in relation to Your Honor's last comment, we had asked for those repeatedly. And Mr. Durham apologized and cited resource constrictions at the U.S. Attorney's office for why we didn't have them. We understood, under Your Honor's general order, we were to have them three days before the trial. So, we have been pestering, I think that's a fair verb, probably how they would characterize my e-mails, we have been pestering them for marked exhibits in the wake of Your Honor's ruling before and since.(my emphasis)

I don't think the Government forgot to redact the tape because they were busy with other things. I think, from the prosecutor's statement at the mistrial hearing, they made an intentional decision not to redact the tape. The prosecutor thought he could get away with the unredacted tape because Laura Pettitte's words were recited by the Congressman in a question to Roger Clemons, rather than by Laura Pettitte herself. And I think that arrogance made the Judge even angrier:

[I]n the first instance, the obligation of doctoring those exhibits to make sure that my ruling was not, was not violated rests with the government.

MR. DURHAM: We're not evading any responsibility, Your Honor.

THE COURT: Why wasn't this altered in order to ensure that this information that I had ruled could not come in would not be played to this jury and shown to them?

MR. DURHAM: This exhibit is in the context of a question that is asked to Mr. Clemens specifically.

THE COURT: That doesn't override my ruling.

The prosecutor had his argument in response to Hardin's anticipated objection all rehearsed. So rehearsed, that when the judge asks him why he didn't redact the exhibit, he responds instead with why the tape was admissible and not covered by the Court's ruling. What we have here is a prosecutor who, despite rulings from the judge that evidence is inadmissible, intentionally introduces it anyway. He never said he forgot, he argued it was outside the judge's ruling.

The Government is asking the Court to rule without a hearing. The double jeopardy ban with respect to retrials is so narrow, I won't be surprised if the Court rules in the Government's favor.

The law is pretty clear that even when the prosecution goads the defense into asking for a mistrial, unless that was their intent, it won't bar a new trial. Egregious conduct (such as putting in clearly inadmissible evidence) if caused by an intent to have a better chance of winning the trial (as opposed to an intent to cause the defense to ask for a mistrial because they think they're losing and want to start over with a new jury) won't do it.

I don't think the prosecutor was trying to goad a mistrial. I do think he was trying to unfairly obtain a conviction at the trial underway by purposely introducing inadmissible evidence in a back-door attempt to evade the judge's ruling. He was probably expecting the defense to object, which is why he didn't stop playing the tape immediately upon hearing the Congressman repeat Laura Pettitte's statement. When they didn't, the Judge stepped in, and he was hoisted on his own pertard.

So will the Judge allow a retrial? Probably, unless he thinks outside the box. A discussion of the defense arguments is here. Background on the mistrial and how it happened is here.

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    The distinction between intentionally goading... (5.00 / 1) (#2)
    by magster on Sat Aug 20, 2011 at 02:08:40 PM EST
    ... a mistrial versus intentionally cheating in order to win is artificial and contrived.  

    Shouldn't every prosecutor be aware going into trial that if he/she intentionally violates a pretrial order, that a mistrial motion is likely?

    That the ole "I didn't think purposefully violating the court's order would actually cause a mistrial" defense is even available to the government shows that this line of cases is a joke that the Supreme Court should be ashamed of.

    I thought jeopardy (none / 0) (#1)
    by Makarov on Sat Aug 20, 2011 at 01:07:11 PM EST
    attached when the jurors were sworn in. Why didn't the prosecutors blow their only chance by violating the judge's order? Or is the jeopardy argument I'm making overly simplistic?

    The applicable rule, as established by (none / 0) (#3)
    by Peter G on Sat Aug 20, 2011 at 08:52:31 PM EST
    the Supreme Court, is clearly and accurately summarized in Jeralyn's post, and has been fully laid out in full, with links and other support, in plain English, by Jeralyn and by me in the earlier coverage that is linked in the post.  The fact that you have had a mistaken and oversimplified idea about in your mind doesn't change that.  Read the post and follow the links.

    I can see only one path for Clemens (none / 0) (#4)
    by Peter G on Sat Aug 20, 2011 at 09:04:41 PM EST
    to win on this issue.  The contemporaneous transcript makes very clear that the prosecutor's conduct was not "inadverent," as Jeralyn has analyzed earlier -- seriously misguided, no doubt, but not inadvertent.  Yet in their current motion, the prosecutors now brazenly claim that their prior misconduct was "inadvertent."  The judge could find, from this blatant lie, which is now part of a pattern of lying, that the prosecutors' assertions on this subject are simply not credible in general, and that a person would not lie in such a situation unless he was desperately trying (and trying too hard) to cover something up.  From this, the judge could infer that the prosecutors' denial of any intent to cause the defense to move for a mistrial is also a lie.  ("Falsus in uno, falsus in omnibus," as we law-nerds sometimes say.)  On this basis, perhaps, the judge could find the required intent to cause the defense to request the mistrial, and order a dismissal on double jeopardy grounds.