Expert: Clemens Mistrial Likely Due to Government’s Arrogance

Roger Clemens’ perjury case was over before it started.  The government was yet to call its first witness when the judge declared a mistrial.

The Legal Blitz asked Temple University Law professor Edward Ohlbaum to help analyze what went wrong, and what will happen next.  Professor Ohlbaum is a frequent speaker on evidence and advocacy at key international and domestic conferences.  He has authored three books and is the senior coach of Temple’s mock trial team, which has won five national championships in the last 13 years.

What was the mistake that the government made, and what procedural rule did it violate leading to the mistrial?

The government played a portion of the Congressional Hearing at which Roger Clemens testified which the judge had ruled inadmissible. Andy Pettite had reported that Roger Clemens admitted using steroids. Clemens contends that Pettite misunderstood him. Both of those statements (Clemens’ and Pettite’s) are admissible. At the hearing, Pettite’s wife was reported to have said that “Andy told me that Roger admitted to him that he used steroids.” This is known as double hearsay (Pettite quoting Clemens to Pettite’s wife) and the Judge told the government they could not refer to what the wife said.

Prosecutors believe the mistake could have been fixed by jury instructions to ignore certain evidence. Is the government correct, or was the mistrial properly declared?

Very good question and one that has been answered in different ways. My view is that it is likely that “curative instructions” could have fixed the problem–but you can never be sure. The judge felt is was better to be safe than sorry–given what is at stake for Clemens. This was the second instance in a very short period of time that the prosecutor ignored an instruction from the court. That may have played on the judge’s mind.

The judge said that even a first year law student should have known better than to introduce this evidence. Is the government really this incompetent?

Probably not a first year student.  We don’t teach evidence and hearsay until the 2nd year.   But I take Judge Walton’s comment.  Marginally competent lawyers (and law students) know that double hearsay is objectionable unless there exceptions to the hearsay rule which would be applicable in the particular instance.  Here, there don’t appear to be any.  I doubt it was a matter of  prosecutorial incompetence.  I’m thinking more like prosecutorial arrogance.

A hearing is scheduled for September 2 to determine whether to hold a new trial. What factors are weighed in this decision and do you think a new trial is likely?

I would be shocked if the government does not seek a second trial — this one barely got off the ground. It would make no sense for them to walk away from a case in which they have put in substantial time and spent a lot of money, before a single witness testified.

Considering how much money this case has already cost the federal government, in your opinion, should the Feds even bother seeking a new trial?

From the Feds standpoint–absolutely. The fact that they have already spent money is a reason to complete the job, not pull the plug. I must say that I’m not a big fan of perjury prosecutions. Remember, Roger Clemens is on trial — not for using steroids — but for allegedly “lying to Congress about whether he used steroids.”

If a new trial is not granted, is Clemens in the clear? Does the government have any other recourse?

If Judge Walton rules that the government may not try Clemens for perjury, it would seem he will not be charged with additional crimes. If I am right, he will be in the “clear” criminally. Whether he goes to the Hall of Fame or to heaven will be up to different tribunals.

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One Response to Expert: Clemens Mistrial Likely Due to Government’s Arrogance

  1. Pingback: Non-Sequiturs: 07.19.11 | Brian Brown's Official Website

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