It’s a close call whether Roger Clemens can win a double jeopardy argument and block a retrial in his perjury case, say experts on the White Collar Crime Prof blog. U.S. District Judge Reggie Walton in Washington, D.C., declared a mistrial yesterday after prosecutors played for the jury a video that the judge deemed prejudicial. Law Prof. Ellen Podgor of Stetson University says the defense will likely argue that it had no choice but to ask for a mistrial and were provoked by the prosecutorial misconduct. The prosecution may resort to an argument that the conduct was inadvertent.
Lawyer Lawrence Goldman noted that the judge had told the prosecutor that that the disputed material in the video, a statement by the wife of Clemens teammate Andy Pettitte, was inadmissible. Goldman says, “probably most importantly, the judge was irked by the prosecutor's opening that mentioned that Clemens' teammates used steroids in seeming disregard of his ruling that such testimony was inadmissible.” The issue may have to go to an appeals court, prolonging the case further.