Roger Clemens Mistrial

A mistrial has been ruled in the Roger Clemens perjury trial and the judge may rule that a retrial would constitute double jeopardy.

A mistrial has been ruled in the Roger Clemens perjury trial and the judge may rule that a retrial would constitute double jeopardy.

ESPN (“Mistrial ruled in Roger Clemens case“):

The judge presiding over Roger Clemens’ perjury trial declared a mistrial over evidence revealed to the jury that he believed would prejudice the jury against the former baseball star.

U.S. District Judge Reggie Walton ruled that prosecutors violated his orders not to reveal certain evidence to the jury. He will hear a motion on whether a new trial would be considered double jeopardy.


Before Walton’s ruling, prosecutors suggested the problem could be fixed with an instruction to the jury to disregard the evidence, but Walton seemed skeptical. He said he could never know what impact the evidence would have during the jury’s deliberations “when we’ve got a man’s liberty at interest.”

“I don’t see how I un-ring the bell,” he said

Walton interrupted the prosecution’s playing of a video from Clemens’ 2008 testimony before Congress and had the jury removed from the courtroom. Clemens is accused of lying during that testimony when he said he never used performance-enhancing drugs during his 24-season career in the major leagues.

One of the chief pieces of evidence against Clemens is testimony from his former teammate and close friend, Andy Pettitte, who says Clemens told him in 1999 or 2000 that he used human growth hormone. Clemens has said that Pettitte misheard him. Pettitte also also says he told his wife, Laura, about the conversation the same day it happened.

Prosecutors had wanted to call Laura Pettitte as a witness to back up her husband’s account, but Walton had said he wasn’t inclined to have her testify since she didn’t speak directly to Clemens.

Walton was angered that in the video prosecutors showed the jury, Rep. Elijah Cummings, D-Md., referred to Pettitte’s conversation with his wife.

“I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,” Walton said.

He said it was the second time that prosecutors had gone against his orders — the other being an incident that happened during opening arguments Wednesday when assistant U.S. attorney Steven Durham said that Pettite and two other of Clemens’ New York teammates, Chuck Knoblauch and Mike Stanton, had used human growth hormone.

Walton said in pre-trial hearings that such testimony could lead jurors to consider Clemens guilty by association. Clemens’ defense attorney objected when Durham made the statement and Walton told jurors to disregard Durham’s comments about other players.

One would think severe sanctions would be in order for the prosecutors for so blatantly violating the judge’s orders–twice.

I am not a lawyer but do not see offhand why a retrial under these circumstances would constitute double jeopardy. Not only has Clemens not been found not guilty but a second trial at this juncture–just a couple days into the proceedings–would hardly seem a major additional burden on him.

The perjury case against Clemons would seem a slam dunk. There’s simply too much evidence, including DNA evidence and sworn testimony by two witnesses very close to Clemens with no incentive to lie about his taking steroids, for there to be reasonable doubt. And it’s Clemens’ own fault that he’s in this predicament. The committee practically begged him not to take the stand and risk incriminating himself.

On the other hand, I’m still not sold that steroids in baseball was any of Congress’ business.

FILED UNDER: Law and the Courts, Sports, ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. James,

    The rule that a mistrial does not constitute double jeopardy goes back to an 1824 case, United States v. Josef Perez. The link to the opinion is here and its remarkable short (of course it isn’t like there was a lot of precedent to cite in 1824). As far as I know, there has never been a serious challenge to the holding in this case in the past 187 years.

  2. James Joyner says:

    @Doug Mataconis: That was my lay understanding as well. That’s why I’m confused by the judge scheduling a hearing on the matter.

  3. Jeff Zolnik says:

    Roger deserved that ruling.When our politicians lie to congress all they get is a tongue lashing and back to work.They need not waste our tax money and people time because there is no jury that will find him gulity.They need to do their homework better or take a poll.Until they start convicting their own the American public will not tolerate it anymore.Hooray for you Roger and your family.

  4. John Burgess says:

    While not exactly addressing double jeopardy, the judge can dismiss the case as a punitive measure against egregious prosecutorial misconduct.

    A bit more tenuously, he could say that the state had its bite at the apple and intentionally bit off too much. Having blow the case through its own misdeeds, it cannot now ask for a do-over.

  5. @John Burgess: @John Burgess: and @James Joyner:

    I imagine the September hearing is to determine whether the prosecutors conduct arises to such a level as to make it impossible to give the Defendant a fair trial on a second try. Since this happened on the first day of testimony I frankly doubt that he’ll go that far. I do imagine though that in a second trial he might require the prosecutor to let him review the videotaped excerpts of Clemens’s Congressional testimony they intend to show the jury

  6. PD Shaw says:

    A big of googling finds this summary of Oregon v. Kennedy, 456 US 667 (1982)

    “Where a defendant in a criminal trial successfully moves for a mistrial, he may invoke the bar of double jeopardy in a second effort to try him only if the conduct giving rise to the successful motion for a mistrial was prosecutorial or judicial conduct intended to provoke the defendant into moving for a mistrial. A more general test of “overreaching” is rejected because it offers virtually no standards for its application and because such a rule may not aid defendants as a class. By contrast, a standard that examines the prosecutor’s intent is a manageable standard to apply. Since the courts below both agreed that the prosecutor did not intend her conduct to provoke respondent into moving for a mistrial, that is the end of the matter for purposes of the Double Jeopardy Clause.”

    That sounds like a pretty high standard, that would probably only exist if the prosecution didn’t have it’s evidence to convict lined up and created a situation that would get a retrial.

  7. george says:

    Lying in court is a crime, and should be prosecuted. Lying to Congress is pretty much business as normal, as Congress lies to itself from time to time without being prosecuted, and lies to the public more or less constantly. If the latter is all that Clemens is being charged with, then I’d argue he never should have been tried in the first place.

    And why, given the huge problems of the country in important areas (economic and military) is Congress looking into steroid use in professional sports in the first place?

  8. Maggiebleu says:

    lying to Congress… One can always get out of that, once discovered, by a simple
    Caveat: “it’s not mean to be a factual statement.”

  9. Wayne says:

    I can see cases where misconduct by the Prosecutor “could” be construed as double jeopardy. If it is believed that the Prosecutor did it because they thought they were losing and\or simply wanted a “restart” or if they seem to be doing it in order to drag out the trial for whatever reason including wanting the defendant to spend money on defense.

  10. OldSouth says:

    Prosecutorial misconduct this blatant is reason enough to dismiss the charges. What, in heaven’s name, is the US government doing spending resources on this prosecution in the first place? It’s obvious the prosecutors didn’t feel they had enough credible, admissible evidence to obtain a conviction by a jury, therefore they attempted to sneak these items past the judge.

    The judge was paying attention, fully aware that if a conviction were obtained under these circumstances, it would be slapped down on appeal, and his competence would be called into question on a very public case.

    Dismissal is the appropriate remedy. The government’s behavior in this case poses much more danger to society than any baseball player misbehaving during his career. Clemens is discredited, like Pete Rose. No more endorsements, no TV work, loss of face, loss of friendships, loss of self-respect. But he never attempted to deprive a citizen of his freedom and Constitutional rights at any point in his career.

    Unfortunately, the lawyers’ careers, after this embarrassment, will continue, and they will create chaos for years to come.

  11. mike says:

    if the prosecutors are this incompetent then they should be reprimanded – Clemens should not be penalized for their mistake – the only way to make him whole is to pay his attorney’s fees – I am sure Clemens is out many thousands of dollars in attorneys’ fees for the time it took to pick a jury and sit through a few days of trial.

  12. george says:

    steroids not the question. Lying to congress is the issue. Typical “adjustment” in the american justice system. Don’t mar the record of a potential hall of famer. Do something simple like forgetting about the exclusion.

  13. Ron Beasley says:

    Who cares? Is this really important?