Has Roger Clemens Hit A Double? The Double Jeopardy Clause And The Clemens Mistrial

U.S. District Judge Reggie B. Walton of the U.S. District Court for the District of Columbia on July 14, 2011 declared a mistrial in the highly publicized criminal trial of William "Roger" Clemens, a former starting pitcher for several Major League Baseball teams. Clemens' trial on federal criminal charges of obstruction of a Congressional committee's investigation,1 making false statements to Congress,2 and perjury,3 arises from his February 2008 Congressional testimony before the U.S. House of Representatives Committee on Oversight and Government Reform, in which he denied using anabolic steroids and human growth hormones ("HGH"). Commentators and interested observers wonder whether the government has committed a game ending error, namely whether a new prosecution of Clemens will be barred.

Prior to trial, Judge Walton had ruled that the prosecution could not introduce evidence of certain statements that Clemens' former teammate (and good friend) Andy Pettitte had made to his wife, Laura Pettitte. Andy Pettitte allegedly told his wife that Clemens had told him that he had used HGH.

Clemens' defense counsel moved, pre-trial, for the exclusion of Laura Pettitte's statements, arguing that the statements are inadmissible hearsay.4 In fact, as Clemens' counsel noted, Laura Pettitte's statements are "double hearsay"—i.e., the out of court statements of Laura Pettitte, recounting out of court statements relayed to her by Andy Pettitte—and are therefore particularly unreliable.5 Judge Walton had granted Clemens' motion in limine in an order dated July 6, 2011, holding that "[t]he government will be permitted to introduce the evidence referenced in the defendant's motion in limine only as rebuttal evidence, provided that defense counsel's cross-examination provides a sufficient predicate for the introduction of such evidence."6

Despite this ruling, on the second day of trial, the government played for the jury video footage of U.S. Representative Elijah Cummings' statements during the Committee hearing, in which Cummings read from an affidavit of Pettitte's wife, describing the conversation she had with her husband. In the footage, Cummings offered his view that such testimony was more credible than Clemens' account.7

According to press accounts, in declaring a mistrial, Judge Walton was "furious" that the prosecution had violated his order excluding reference to Laura Pettitte's statements in the government's case in chief. The Judge stated, "I...