Tom Schoenberg and Ann Woolner at Bloomberg have spoken to lawyers who say that after the mistrial in his perjury case, Roger Clemens will probably have to face a jury yet again.
"A procedural goof-up shouldn’t preclude a retrial, unless the judge believes it involves intentional, egregious misconduct," [Stanford law professor Robert] Weisberg said, citing a Supreme Court ruling.
We'll see whether the judge finds the prosecution's behavior to be "intentional" and "egregious." Judge Reggie Walton had already ruled that the prosecution could not refer to former Clemens teammate Andy Pettitte's wife, Laura, except to refute arguments by Clemens' side. But the prosecution played a video clip of Clemens testifying to a congressional committee in 2008 that included a question from Rep. Elijah Cummings that mentioned Laura Pettitte.
Does this constitute "intentional, egregious misdonduct"? Well, we'll see. Walton scolded the prosecution for its use of the video, saying that a "first-year law student" would have known not to include it. If Walton determines the prosecution acted egregiously, he could say invoke double jeopardy and say that the prosecution can't retry Clemens.
The trial was just getting started, however, which would suggest that, although Walton might have been annoyed with the prosecution, he's likely to allow the government to put Clemens on trial yet again. The prosecution's mistake was a silly one, but it appears unlikely, in itself, to prevent them from getting their man.
Ed. note: This post was written by Charlie Wilmoth.