Thursday, July 14, 2011


A mistrial was declared today in the Roger Clemens case. The most crucial government witness, in my opinion, was to be former teammate and still friend, Andy Pettitte. He has stated that Clemens admitted to having taken performance enhancing drugs and that he (Pettitte) told his wife of this conversation that same day. The prosecution wanted to call Pettitte's wife to bolster his credibility on this important point. At a pretrial hearing, the judge had ruled Ms. Pettitte's alleged testimony to be inadmissible "because it didn't involve direct knowledge of what Clemens said." In beginning it's case, the government showed the jury a video of the congressional hearing at which Clemens swore that he never took PED. A portion of this video showed a Congressman making specific reference to Ms. Pettitte's allegations and reading her affidavit. The judge immediately halted the trial proceedings and summonsed the attorneys to sidebar. He was pissed. The prosecution had directly contravened his evidentiary ruling. Note: the defense had made no objection when the video was being played. It was the judge who rang the bell. The sidebar conference lasted several minutes during which time the video remained frozen on the screen, in front of the jurors, with a transcript of what was being said on the bottom. The judge opined that Clemens had been denied a fair trial.The defense moved for a mistrial and the judge so declared. He voiced his displeasure at how much time and money had been wasted because of the government's mistake and expressed his uncertainty as to whether a retrial was in order, adding that he would be consulting with a colleague on what to do. A hearing on his decision is scheduled for September 2.

A retrial would not violate the protection against double jeopardy, especially, since the defense requested it. The most influential factor is the appropriateness, or lack thereof, of a second trial. I'm talking, not just about wasted cost and court time, but about the aura surrounding Roger Clemens. He is an American icon. Even at the congressional hearing, the origin of the perjury question, committee members lavished praise on the all-star pitcher and expressed dismay at the waste of time and money occasioned by its own hearing. Jurors, during their selection process, also voiced this concern. The ruling of the judge, himself, acknowledged this factor.

I do not base my prediction on questions of law. Not to disparage them, but to focus on the practicality of the situation. There exists an abundance of pro-Clemens sentiment among citizens and congress. Political  temperature should, legally, have no place in a court of law. Real life considerations, however, transcend such boundaries.

The judge shall rule against a retrial. His decision shall be based, in the main, on the impossibility of Clemons ever receiving a fair trial. Such a decision could be overturned on appeal only upon a finding that the judge acted arbitrarily. This would never happen. His ruling would, for practical purposes, be predicated on saying to the government: You had your chance. You blew it. You cost the taxpayers a helluva lot of dough. Enough.

This decision shall rankle some. This is their right. But, in this world, theory often takes a back seat to practicality. It's the way it is. And in some situations, that's the way it should be.

The defense didn't win this battle. The prosecution lost it.

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