Clemens mistrial decision, what’s next?

Roger Clemens mistrial decision in his perjury case led to his defense team exiting the federal courthouse in Washington, D.C. victorious for the moment.

Clemens bolted from the courthouse with dozens of media and photographers trailing then ducked into a restaurant to get a bit of time alone with Rusty Hardin, his chief legal counsel. They must have been exchanging high-fives and contemplating how to attack the feds’ expected motion to retry one of MLB’s most dominating pitchers ever.

Hardin will argue that a second bite at the apple constitutes double jeopardy while prosecutors will say Clemens hadn’t been acquitted and the potential jury trial not tainted by their mistakes.

The gaffe wasn’t intentional, the government lawyers will stress. So how did it happen? No one will ever know except members of the prosecution team who didn’t excise a bit of video tape from a series of clips being shown to the jury this morning.

Was it a mistake or intentional?

Prior to this trial, the judge heard motions about what evidence would and wouldn’t be allowed during the course of the trial. The judge made clear that Clemens’ former teammate and friend Andy Pettite’s testimony would be admissible (that testimony included Roger admitting he juiced with HGH).  But Andy’s wife, Mrs. Pettite’s statements that she talked with her husband about that conversation that included the admission were off limits so she was struck from the potential witness list and the feds were barred from using her statements in evidence presented to the jury.

That’s where this mistrial decision came in.

There in the videotape being played in front of the jury and court that included Congressman Elijah Cummings facing Clemens at the 2008 hearings and discussing Mrs. Pettite’s corroboration. Although the defense didn’t jump up and object, the judge asked that the tape be paused and asked the jury to leave the courtroom.

After discussing with the lawyers from both sides what to do about the bonehead move, Rusty Hardin moved for a mistrial and after deliberating a few minutes, the judge granted the motion.

What does it mean?

For now the case is dismissed and the prosecution gets to make a motion for a re-trial with a new jury but Clemen’s defense team will argue that granting that request will constitute double jeopardy. The judge will decide at that time whose argument has more merit and announce that decision on September 2, 2011.

By not omitting Mrs. Pettite’s portion from that tape, the prosecution ignored the judge’s earlier decision and wrapped the noose around their own necks. It doesn’t matter whether it was intentional or a mistake because the jury heard it and were therefore tainted.

While the prosecutors asked the judge to instruct jurors to simply ignore that portion of the videotape, the feds had earlier inserted other banned testimony into their opening arguments that ticked off the judge and led to this latest mistrial decision.

Thus far, the time and money spent by the U.S. Attorney’s office on bringing the case to trial may have been spent in vain unless the judge allows the circus to continue with a whole new jury this autumn.

Used with permission of the author.

Paula Duffy is a national sports columnist for and the Huffington Post and regularly comments on sports/legal matters for radio affiliates of ESPN and Fox Sports. She founded the sports information site, Incidental Contact, is the author of a line of audio books designed for sports novices and in her spare time practices law in Los Angeles.

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