Right Field

Clemens Mistrial

Because some are asking, I do not see that there will be a double jeopardy bar to a new trial of Roger Clemens based on the mistrial granted today. Double jeopardy generally kicks in only if the jury in the first trial reaches a verdict. Moreover, a mistrial is granted on the motion of a defendant — by making the motion for a mistrial rather that saying that any prejudice caused by a prosecution error can be cured by a jury instruction, the defendant is constructively waiving his right to complain that the trial has to be started all over again … after all, he asked for it.

There is a doctrine of law which holds that if the prosecution intentionally provokes a mistrial the court can deny a new trial — which is really more an instance of due process than double jeopardy. But it is extremely rare: It happens when the prosecution makes a truly outrageous error — misconduct, really — under circumstances where the trial has not been going well for the prosecution, so you can fairly infer that it was done on purpose. What happened at Clemens’s trial was a very bad error, to be sure — exposing the jury to obvious, inadmissible hearsay from Andy Pettite’s wife about how Pettite told her Clemens admitted HGH use to him is inexcusable (the judge evidently said a first-year law student would know that, and that’s not much of an exaggeration). But that’s why Clemens was entitled to the mistrial, not to the windfall of having the indictment dismissed. It was only the second day of the trial, and it’s inconceivable that the prosecutors did this intentionally, even if it was mindbogglingly stupid.

If there is not a retrial, it will be because the Justice Department has decided that enough time, money and effort has been wasted on this case. I’d be shocked if that happened. 

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