Tuesday, August 23, 2011


A defendant says to the judge,"I'm not guilty, Your Honor. The indictment says I killed the guy with a gun. But that's not true; I knifed him to death." What am I talking about? Read on.

The issue is whether Clemens lied to Congress when he denied, under oath, that he had ever taken performance enhancing drugs. It was alleged that he had admitted doing just that to his teammate, Andy Petite, who told his wife of this conversation. Petite was scheduled to be a prosecution witness. Prior to trial, the judge ruled that this spousal communication was inadmissible as hearsay. The ruling was crystal clear.

During the Government's opening statement, a video was played for the jury. A simultaneous transcript of the video's content was reflected on the bottom of the screen. It showed a Congressman saying to Clemens,"Let me read to you what (Petite's) wife said in her affidavit: Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones. Mr. Clemens, once again, I remind you, you are under oath. You have said your conversation with Mr. Petite never happened. If that was true, why would Laura Petite remember Andy telling her about this conversation?"
Remember,this question was reflected, verbatim, on the bottom of the screen.

At first, the defense didn't ask for a mistrial, but only for a limited instruction, and asked for time to compose it. Then, it was realized that the prosecution had "failed" to turn off the video equipment, so that the transcript of the Congressman's statement remained on the screen, in front of the jury, for the 3-5 minutes that counsel were at the bench. (TalkLeft.com). It was then that the defense asked for a mistrial.

The defense accused the Government of deliberately violating the court's ruling re the inadmissibility of Laura Petite's statement. The prosecution's response, in substance, was that since Mrs. Petite's words were recited by the Congressman in a question to Roger Clemens, rather than by Laura Petite herself, this was "not evidence" and therefore not in contravention of the judge's ruling. I'm gagging as I type this.

The judge went ballistic. He assailed the Government for "wanting to do whatever it could get away with. And I think a first-year law student would know that you can't bolster the credibility of one witness with clearly inadmissible statements." Concluding that Clemens could not get a fair trial before the chosen jurors, he declared a mistrial.

Usually, when a defendant requests a mistrial, double jeopardy does not kick in. The exception to this rule is when the conduct causing the mistrial was intentional. And here it clearly was. The prosecution's argument is laughable. The scathing remarks of the judge are consistent with this inescapable conclusion.
On September 2, 2011, a hearing will be held to resolve the question of a second trial. If the judge is mindful of how he felt and what he said on the final day of the aborted first trial, he will invoke the constitutional principle of double jeopardy and call it a day. Or he may decide, on a practical basis, that the prosecution's conduct, with its attending notoriety, is a bar to Clemens ever receiving a fair trial.

The government had its shot and blew it. I sense public sentiment to be on Clemens' side. Pack it in, Mr. U.S. Attorney and go after the bad guys. No rain-checks for this particular game.

In a homicide case, no legal difference between gun and knife. In this case, no difference between inadmissible hearsay and double inadmissible hearsay. The Government tried to sneak in through the back door and got caught. The judge will not allow a double-header.

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