After mistrial, will Roger Clemens face a second trial?

Two days into the trial of Roger Clemens on federal charges of perjury, the government’s prosecutors made a major mistake that caused Judge Reggie Walton to declare a mistrial. Now, Judge Walton faces the question of whether the government can retry Clemens or if a retrial would be impossible because of the U.S. Constitution’s ban on double jeopardy.

Broadly, double jeopardy prohibits trying the same defendant for the same crime twice. The issues in the Clemens case are whether Clemens faced jeopardy in the first trial, and if so, whether double jeopardy prohibits a second trial.

As a general rule, a defendant faces jeopardy once a jury is sworn in, which happened in the Clemens case. But, that jury needed to be dismissed when the prosecution showed it evidence that the presiding judge had already ruled could not be shown to the jury. About two days into testimony, prosecutors showed the jury a video of the hearing at which Clemens allegedly committed perjury. However, prosecutors showed too much of the video to the jury, which included portions of the video in which a congressman referred to evidence that Judge Walton had previously ruled to be inadmissible. This directly led to Clemens’ defense team asking for and receiving the mistrial.

Now, the legal community is divided about whether the government can proceed with a second trial. Supporters of a second trial argue that the prosecution’s mistake was accidental, and therefore the mistake should not preclude a second trial. This is because, as a general rule, a second trial is not prohibited if the defense requests or consents to the mistrial.

However, even if the defense requests a mistrial, a second trial would be prohibited by double jeopardy if the prosecution intentionally made a mistake or intentionally provoked a request for a mistrial by the defense. Professor Alan Dershowitz of Harvard School of Law believes that a second trial will be barred for this reason. “The government constantly does this because they think they can get away with it,” he said, adding that it would be highly irregular for the prosecution to accidentally make a mistake like the mistake it made in the Clemens case.

Source: The Washington Post, “Experts say Clemens retrial likely unless he can convince judge prosecutors provoked mistrial,” 25 July 2011