Double Jeopardy And Roger Clemens

Less than two months ago, U.S. District Court Judge Reggie Walton declared a mistrial in the Roger Clemens case after the prosecutors played an inadmissible video clip to the jury. Judge Walton said the experienced prosecutors made a mistake that a "first-year law student" would not make. Judge Walton will determine whether Roger Clemens may be prosecuted again or whether he is protected by the 5th Amendment's "Double Jeopardy Clause." Clemens would be tried on the same criminal charges (perjury and obstruction of justice) and "jeopardy" had attached when the jury was impaneled and sworn in.

Generally, when a mistrial is granted in response to a defendant's motion, any double jeopardy claims are waived. However, the standard for double jeopardy, following a mistrial granted as a result of a prosecutor's conduct is whether the actions were intended to provoke the defendant into asking for a mistrial. Oregon v. Kennedy, 456 U.S. 667 (1982). Basically, did the prosecutor try to goad the defense --if so, double jeopardy applies. If the prosecutors "merely" made a mistake, even the kind a law student wouldn't make, then Clemens will face another jury trial.

Rarely does a DOJ prosecutor find herself subjected to an inquiry of her intentional conduct. Prosecutors take an oath to defend "the Constitution of the United States against all enemies, foreign and domestic. ..." and then spend their professional careers seeking to convict individuals who intend to and do commit crimes. Starched white shirts, dark-blue suits and a gold badge. On the other hand, the DOJ attorneys are accused, by the defense, that they acted in bad-faith and intentionally contravened the Judiciary and the Constitution.

In the Clemens' case, the prosecutors have to show that playing the excluded and prejudicial video tape to the jury was not an act intended to make Clemens seek a mistrial. How can the prosecutors do that? Easy. All they have to do is admit that they made a huge mistake. Not surprisingly, the prosecutors did...