Roger Clemens Mistrial: Does Double Jeopardy Apply?

The Roger Clemens trial came to an abrupt end Thursday morning as Judge Reggie Walton declared a mistrial following the government's introduction of inadmissible evidence. The government showed video that included Rep. Elijah Cummings reading from Laura Pettitte's affidavit regarding comments Clemens made to her husband, Andy Pettitte, which Andy in turn told Laura. This double hearsay was ruled inadmissible prior to the trial.

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.

While jeopardy attached, Judge Walton's decision to declare a mistrial will likely allow the government to re-try the case. In US vs. Perez (22 U.S. 579), the U.S. Supreme Court held that a second trial does not violate a defendant's constitutional rights as long as the trial judge has declared a mistrial in the first proceeding based on "manifest necessity." The Court did not have a specific formula for determining this necessity other than to say the trial judge needed to exercise sound discretion.

In plain terms, the government will likely be allowed to re-try the case as the mistake could be viewed as inadvertent. We'll know more after the September 2 hearing, but I'd predict we can expect this circus to start back up later in the fall.

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