Judge Rules Roger Clemens Can Be Re-Tried

Update: Judge Walton ruled a re-trial is not barred. The double jeopardy bar is too high. He's angry at the Government, and may seek to have the Government pay Clemons' cost if there's a retrial, but he won't bar a retrial. The judge expects the defense to appeal his ruling. A new trial date has been set for April 17. Great tweeting by TJQuinnESPN.

Judge Walton is ruling now. Via TJQuin@ESPN.com:

Walton: and even if it was intentional, I don't think I can conclude that's sufficient that there is a double jeopardy bar.
And then:
Sounds like he's ready to rule trial may continue, but every sentence contradicts the last. Ups and downs are murder.

...Walton: if there's a retrial, he might see if he can force gov't to pay for #Clemens' wasted time from first trial.

...He's speaking as if he has already ruled: the trial may go on.


A hearing is underway as to whether Roger Clemens will be retried. It just broke for lunch and will resume at 2:15 pm. Right before the break Judge Reggie Walton asked the Government, if he grants a new trial, who pays for Clemens' wasted costs from first trial? He said it doesn't seem fair.

The defense argued "This case should end. Enough money has been wasted. The government doesn’t deserve another bite of the apple."

While he only interrupted Clemens' counsel twice, he asked the defense the key question: Even if the government purposely entered banned evidence, does that mean they wanted to cause mistrial?

The Government, represented by appellate specialist David Goodhand, argued they made a mistake and did not intend to cause a mistrial. Judge Walton was clearly angry at the Government. He interrupted the Government's argument several times to berate them. But that doesn't mean he'll rule against them.

Stay tuned, and for the best twitter updates, follow @TJQuinnESPN and @NYDailySportsTeam.

For our discussion of the legal issues involved, go here and here. For links and discussion of each side's filed brief, go here and here.

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    Well wonderbar! (5.00 / 4) (#3)
    by jimakaPPJ on Fri Sep 02, 2011 at 04:17:20 PM EST
    It's nice to know that we have so much money and the JD is so wanting for work that we can spend time on an issue that is of absolutely zero importance.

    Makes me proud.

    (Sarcasm alert!)

    Jim, the world must (5.00 / 3) (#4)
    by Zorba on Fri Sep 02, 2011 at 04:20:39 PM EST
    be about to end.  I actually agree with you.  ;-)

    I know what you mean, Zorba. (5.00 / 1) (#9)
    by caseyOR on Fri Sep 02, 2011 at 06:48:59 PM EST
    I find that I agree with Jim, too. Is this a sign of the Apocalypse?

    Take two aspirins (none / 0) (#8)
    by jimakaPPJ on Fri Sep 02, 2011 at 06:07:53 PM EST
    and you'll be better in the AM!



    Behold the Bread and Circuses... (5.00 / 1) (#10)
    by Mr Natural on Fri Sep 02, 2011 at 07:57:29 PM EST
    Pay no attention to the rampant perfidy behind the curtain.

    The overwhelming irony: (5.00 / 2) (#11)
    by Mr Natural on Fri Sep 02, 2011 at 08:59:29 PM EST
    Clemens is in trouble for lying to the most corrupted, most professional liars on the face of the earth, our U.S. Congress.

    Is there precedent for a federal judge to (none / 0) (#1)
    by oculus on Fri Sep 02, 2011 at 12:38:26 PM EST
    government to p/u the costs to defense of a mistrial?

    Mere "precedent" would not be enough (5.00 / 1) (#2)
    by Peter G on Fri Sep 02, 2011 at 03:20:11 PM EST
    Because of sovereign immunity and separation of powers, there would have to be express statutory authority.  I know of none that applies to criminal cases.

    This brings up a good point, (none / 0) (#5)
    by NYShooter on Fri Sep 02, 2011 at 04:46:32 PM EST
    and one I've tried to get an explanation of.....to no avail.

    Assume the trial had gone full term and Roger had won. Further assume that his legal fees were, let's say, one million dollars.

    And, finally, one more assumption: The Government appeals, and the appellate court rules that that the trial judge made some error, and remands the case for re-trial.

    Guess who pays for his legal fees twice? You guessed it, Roger Clemens. Through no fault of his, or his attorney's, he has to bare the cost a second time.

    My question: How can this be fair?

    If the trial had continued to its conclusion (none / 0) (#13)
    by Peter G on Sat Sep 03, 2011 at 11:35:58 AM EST
    and Clemens had won, as posited in your hypothetical scenario, then the government could not have appealed.  So there couldn't then be a retrial.  (By "Roger had won" I have to assume you mean that the jury found him not guilty on all charges.) The double jeopardy clause bars the government from appealing an acquittal, even if an error of the trial judge may have contributed to that verdict.  So the question you pose is based on a mistaken assumption; it wouldn't and couldn't happen.

    Yes, of course I knew that, but (none / 0) (#16)
    by NYShooter on Sat Sep 03, 2011 at 12:41:36 PM EST

    In my haste my mind went blank as to the nature of Clemens's case. Thank you. But, as I mentioned in my follow-up post, I wish I knew the logic the court uses in the financial  "double jeopardy" a litigant is assessed when a second trial,  through no fault of his own, is required.


    nyshooter: if defendant (none / 0) (#6)
    by oculus on Fri Sep 02, 2011 at 05:09:20 PM EST
    is acquitted, the government has no appeal.

    O.k, sorry (none / 0) (#7)
    by NYShooter on Fri Sep 02, 2011 at 05:22:41 PM EST
    Then, let's make it a tort case.

    My point was, why does a litigant have to bare the burden of two trials when the error forcing a second trial is the fault of the judge?


    Sorry, Oculus (none / 0) (#14)
    by Peter G on Sat Sep 03, 2011 at 11:38:46 AM EST
    When I responded to NYShooter (@ #13) I hadn't seen your response, with which I agree, because you didn't nest it as a "Reply" to the original post.

    For some reason, I can't "reply" via (none / 0) (#15)
    by oculus on Sat Sep 03, 2011 at 11:48:13 AM EST
    Blackberry.  I can type it is as reply but it won't post.  Confusing, I know.

    It makes (none / 0) (#12)
    by lentinel on Sat Sep 03, 2011 at 06:34:43 AM EST
    me quite annoyed that our government has time for going after Clemons, but is disinterested in going after Cheney, the Elder Statesman.

    Is there any law, or principle previously held dear by the American people, that this man, Cheney, has not violated?

    It seems to me that the government is most upset at the possibility that Clemons may have lied to congress about his steroid use.
    Horrors upon horrors! Sound the alarms! Hide the children!

    Cheney, as we all know, orchestrated a barrage of lies to the entire Nation as well as to the Congress - lies which resulted in the needless deaths of hundreds of thousands and the fatal erosion of our civil liberties.

    Clemons, if he lied, lied about something that may have enabled him to win a few more baseball games that he otherwise might have.

    Something is out of whack.