U.S. District Judge Reggie Walton is considering the possibility that putting Clemens on trial again would subject him to double jeopardy.
Walton, who declared a mistrial on July 14, has ordered both sides to submit their arguments in writing and has scheduled a Sept. 2 hearing.
Attorneys and scholars who have reviewed case transcripts provided by The Associated Press say a second trial seems likely under rules established by the Supreme Court.
“It is one thing when something like this happens three weeks into a month-long trial where the defense has poked big holes in the government’s case and effectively crossed main witnesses,” said Andrew Wise, a white-collar attorney with the Washington firm Miller & Chevalier. “But when you are on day two of a month-long trial, it is harder to argue that the government was throwing in the towel and goading the defense into seeking a mistrial so they could have a fresh start.”
Protection against double jeopardy is guaranteed by the Fifth Amendment of the Constitution, which says in part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
The Supreme Court has ruled that a defendant is considered to be in jeopardy once a jury is sworn in, so Clemens had been in jeopardy for just over one day. But the question is whether the jeopardy ended with Walton’s declaration of a mistrial.
At least one prominent expert disagrees with the chorus of his colleagues who are predicting a second trial. Harvard law professor Alan Dershowitz said there’s no innocent explanation for why prosecutors put inadmissible evidence in front of the jury.
“The government constantly does this because they think they can get away with it,” Dershowitz said. “When you are preparing a case for so long, you don’t make errors like this. I have a high level of confidence that a good lawyer could keep this case from being retried.”
I’m not a lawyer, so I have no idea what the “correct” ruling should be. As a non-lawyer, I think the prosecution screwed the pooch badly enough the first time around that they don’t deserve a second chance, but that’s an emotional opinion, not a legal one. Whatever happens, it won’t change my opinion that Clemens belongs in the Hall of Fame when he becomes eligible. To me, the only true disqualifier is what is spelled out in baseball’s rules: Thou shalt not bet on games. I don’t expect the writers to see it that way – the opportunity to pontificate about the evils of steroids, which they missed doing for basically the entire time that players were actively using them, will be way too much for them to pass up. As such, I will go back to paying only minimal attention to this until we get a result.