Judge Allows For A Retrial In Government’s Case Against Roger Clemens

Judge rules in favor of a retrial for Clemens. Sets trial date of April 17. Clemens, however, can appeal this decision.The difference between getting a retrial or having the case thrown out was one of intent. Did the prosecution deliberately enter the evidence, knowing that would lead to a mistrial, which would be a sneaky way the prosecution to start the trial over? Or was the entry of the evidence an accident, like sitting on your cell phone weird and butt-dialing an ex-girlfriend at three in the morning? The Judge Reggie Walton ruled it was the latter, probably in those exact words.

Clemens can appeal to the District of Columbia Court of Appeals, which he will almost certainly do. This means that the April 17th date for a retrial is hardly set in stone, as the appeals process might not even be finished by then.

Tom Schoenberg and Ann Woolner at Bloomberg have spoken to lawyers who say that after the mistrial in his perjury case, Roger Clemens will probably have to face a jury yet again.

We’ll see whether the judge finds the prosecution’s behavior to be “intentional” and “egregious.” Judge Reggie Walton had already ruled that the prosecution could not refer to former Clemens teammate Andy Pettitte’s wife, Laura, except to refute arguments by Clemens’ side. But the prosecution played a video clip of Clemens testifying to a congressional committee in 2008 that included a question from Rep. Elijah Cummings that mentioned Laura Pettitte.

Judge Walton has set a hearing for September 2 to determine whether the government will be allowed to re-try the case. The defense has 10 days to file a motion to prevent such a re-trial and it’s safe to say Rusty Hardin will be getting that motion in as soon as possible.

Now that the trial has been terminated, the primary question that arises is whether double jeopardy would apply. The Fifth Amendment protects citizens from being prosecuted twice for the same crime. In a criminal case jeopardy generally attaches once the jury has been empanelled. In the Clemens case, the jury was empanelled and the government had already called multiple witnesses when they introduced the inadmissible evidence.

The Roger Clemens trial has come to an abrupt and unexpected end, with Judge Reggie Walton declaring a mistrial because the government introduced evidence previously ruled inadmissible.

In the affidavit, Laura mentioned that Andy had told her Clemens told him he used HGH. During pretrial hearings, Judge Walton had ruled this inadmissible because it was double hearsay. The first level of hearsay was Clemens telling Pettiitte and the second level of hearsay was Pettitte telling his wife. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is inadmissible unless one of a number of exceptions apply. In this case, no such exception was allowed and it was ruled inadmissible.

After years of discussion and analysis, the trial of Roger Clemens finally began in earnest on Wednesday as we had opening statements and the first few witnesses take the stand.

One of the major questions in regards to the hearings is the issue of subsequent legislation that may come from the hearings. Clemens defense attorney Rusty Hardin attempted to establish that the hearing was simply Congress butting into a private citizen’s alleged use of a controlled substance. With no plan to even attempt to pass legislation, Hardin believes it was an improper use of power.

Opening statements got underway on Wednesday in the Roger Clemens trial and the defense laid out their plans to portray Brian McNamee as a habitual liar who betrayed what Clemens viewed as a solid friendship. The opening statement provides an opportunity for an attorney to lay out his case to the jury, piece-by-piece. The opening statement is not evidence, but rather a road-map of what lies ahead.

While the opening statement is not evidence, attorneys can use it to generate certain buzz words in the minds of jurors. When subsequent evidence appears and those buzzwords pop up, they’ll connect it back to what they heard in the opening statement. If an attorney plans to provide certain pieces of evidence and fails to do so, a juror can often think back to what they remember from the opening statement and question the decision not to include the evidence.

A day after jury selection concluded, the Roger Clemens trial got into full swing on Wednesday with opening statements from each side. The final Clemens jury consists of ten women and two men, with nine African Americans and three whites. For comparison’s sake, the Barry Bonds trial consisted of eight women and four men, only two of which were African American.

Clemens is on trial for one count of obstruction of Congress, three counts of providing a false statement, and two counts of perjury. The opening statements provide an opportunity for each side to lay out its case for the jury. Opening statements do not constitute evidence to be considered during jury deliberations, but rather it is the road map for the case. Attorneys will use phrases like, “The evidence will show...” and “Witness X will testify that...” They will use these phrases because attorneys cannot make arguments during the opening statement, they can only lay out facts. Thus the difference between the opening statements and closing arguments.

Jury selection is expected to conclude on Tuesday in the Roger Clemens trial, but the morning saw a preliminary hearing as to the jury instructions. Once a jury is selected, the empaneled jurors will receive preliminary jury instructions before opening statements and then additional instructions either right before or right after closing arguments.

In this particular instance, there was a portion of the hearing devoted to whether Roger Clemens was at a pool party at Jose Canseco’s house. Clemens denied attending the party and the defense contends this minor dispute within the hearing suggested a lack of legitimacy. They believe the jurors should not only be looking at whether Clemens lied, made false statements and/or obstructed Congress, but also whether the hearing itself was legitimate. If the jury decided the hearings were not even legitimate in the first place, that would conceivably throw out the obstruction of Congress charge even if it is proven that Clemens purposefully lied to Congress.

The Roger Clemens trial enters its second week halfway through the first round of jury selection. The court must come up with 36 possible jurors it can then whittle down to the 12 person panel and four alternates. After two days of jury selection last week, the attorneys advanced 18 individuals to the knockout stage. At the current pace, the first round should be completed at some point Tuesday afternoon.

At that point the two sides can work to empanel the jury by the end of the day on Wednesday. Of course, Judge Walton has been less than pleased with the slow pace thus far so it is entirely possible the lawyers might speed things up on Monday. The two sides have to advance 18 more people and if they dismiss three more before then, another 50 individuals will have go through the preliminary 82 questions met by the first 50.

The Roger Clemens perjury trial is in recess until Monday morning after two full days of jury selection. The court has selected 18 prospective jurors for the 36-person pool that will eventually be narrowed down to 12 starting Tuesday or Wednesday. At this point the attorneys are presenting a variety of oral questions to prospective jurors to decide whether they should make it to the knockout round.

As the attorneys works to narrow down the group, they will likely have to bring in more prospective jurors. The court indicated Thursday afternoon that if three more prospective jurors were dismissed before 18 more were selected, the court would need to screen 50 more jurors with the original 82-page questionnaire.

The perjury and obstruction of Congress trial of Roger Clemens ended its first shortened week after day two of jury selection. The pool of potential jurors will be whittled down to 36, at which point the “knockout round” will begin and the final twelve-person jury, plus alternates, will be determined.

The trial adjourned for the weekend, which means jury selection will pick back up Monday morning. In the first two days, 18 prospective jurors have been approved for the 36-person pool. According to Judge Reggie B. Walton, the hope is to have the 36 people selected by Tuesday afternoon, at which point they’ll work to select the 12-person jury. The process could potentially slow even further, as the court is running low on its current pool. Apparently, if three more prospective jurors are dismissed before the 36 are selected, the court will have to screen 50 more potential jurors with the 82-page questionnaire.

The Roger Clemens trial continued its second day of jury selection on Thursday and one of the highlights of the day involved Judge Reggie Walton scolding the attorneys for the length of some of their questions. Jury selection was originally supposed to be finished by the end of the week but now is expected to go until at least Tuesday, if not longer.

This is not the first time Judge Walton has come down hard on a participant in this trial. On Wednesday, he chewed out a Congressional attorney for refusing to turn over audio of Clemens testimony before the Congressional Committee. Walton has made it clear that he will not take any sort of nonsense from the various parties.

Prior to the jury selection, the two sides argued a variety of motions in front of the judge that raised some possible issues for when trial testimony begins. The two biggest issues related to the transcript of Clemens’ testimony and the possibility of former athletes testifying as to their dealings with Clemens’ trainer Brian McNamee.

Congress referred Clemens’ name to the Justice Department for prosecution, and when they submitted his name they submitted a transcript of his testimony as part of their evidence. Clemens’ attorney Rusty Hardin demanded Congress turn over audio of the hearing because he believes the tone and inflection reflected in the audio would impact the case.

Under Section 1505:

Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so ..... Shall be fined under this title, imprisoned not more than 5 years[.]Clemens also faces three counts of giving false statements based on his denial of using HGH and steroids, and saying that Brian McNamee injected him with B-12 and not a PED. This violates Title 18 of the US Code, Sections 1001(a)(2) and (c)(2). Subsection (a)(2) states:

The process of whittling down a pool of 125 Washington D.C. residents to 12 jurors and four alternates begins Wednesday, as Judge Walton will ask potential jurors a series of 67 questions about their knowledge of and opinions on the case. The first 50 prospective jurors will be interviewed on Wednesday, and Judge Walton wants to finish selecting the jury by early next week.

The charges Clemens faces are one count of obstruction of Congress, three counts of false statements and two counts of perjury.