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U.S. vs Clemens


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#1 th@tkid

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Posted 14 July 2011 - 11:33 AM

= Mistrial..

http://espn.go.com/m...clares-mistrial

WASHINGTON -- The judge presiding over Roger Clemens' perjury trial declared a mistrial over inadmissible evidence shown to jurors.

U.S. District Judge Reggie Walton said Clemens could not be assured a fair trial after prosecutors showed jurors evidence against his orders in the second day of testimony.

He will hear a motion on whether a new trial would be considered double jeopardy. Rusty Hardin, Clemens' attorney, said he needs until July 29 to file the motion for the double-jeopardy hearing. The prosecution has until Aug. 2 to respond and the hearing would take place Sept. 2.

The jury is coming back to hear the ruling and Walton will talk to the jurors shortly.

Before Walton's ruling, prosecutors suggested the problem could be fixed with an instruction to the jury to disregard the evidence, but Walton seemed skeptical. He said he could never know what impact the evidence would have during the jury's deliberations "when we've got a man's liberty at interest."

"I don't see how I un-ring the bell," he said

Walton interrupted the prosecution's playing of a video from Clemens' 2008 testimony before Congress and had the jury removed from the courtroom. Clemens is accused of lying during that testimony when he said he never used performance-enhancing drugs during his 24-season career in the major leagues.

#2 TheoShmeo


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Posted 14 July 2011 - 11:40 AM

He will hear a motion on whether a new trial would be considered double jeopardy. Rusty Hardin, Clemens' attorney, said he needs until July 29 to file the motion for the double-jeopardy hearing. The prosecution has until Aug. 2 to respond and the hearing would take place Sept. 2.

SoSH criminal lawyers: Please weigh in. Is this a close call?

The thought of Roger getting off because the prosecutors Chris Darden'd and Marcia Clark'd the trial is disgusting.

#3 mandro ramtinez

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Posted 14 July 2011 - 11:45 AM

Honestly, Chris Darden and Marcia Clark look almost like mini Clarence Darrows in comparison to the incompetence displayed by the Clemens' prosecutors. As Judge Walton said in his rebuke of the prosecutors, showing the inadmissable evidence regarding Mrs. Pettitte's statements is a mistake a first year law student would know not to make (or at worst a 2l, depending on when you took Evidence).

Edited by mandro ramtinez, 14 July 2011 - 11:47 AM.


#4 cwright

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Posted 14 July 2011 - 11:46 AM

What the hell?
Were the prosecutors trying to get a mistrial?
I don't understand why they'd purposely violate the judge's ruling.
But then, I'm not a lawyer.

#5 dcmissle


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Posted 14 July 2011 - 11:53 AM

SoSH criminal lawyers: Please weigh in. Is this a close call?

The thought of Roger getting off because the prosecutors Chris Darden'd and Marcia Clark'd the trial is disgusting.


I'm not a criminal lawyer, but the rule as explained in Crist v. Bretz, 437 U.S. 28 (1978) seems plain enough -- jeopardy attaches when the jury is sworn. Which likely means the case just went down the toilet bowl.

This is inexcusable. You don't mess with Judge Walton, and the prosecution had to have known better. FUBAR.

#6 WayBackVazquez


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Posted 14 July 2011 - 12:00 PM

I'm not a criminal lawyer, but the rule as explained in Crist v. Bretz, 437 U.S. 28 (1978) seems plain enough -- jeopardy attaches when the jury is sworn. Which likely means the case just went down the toilet bowl.


Every time there's a hung jury, by definition the jury had been sworn, and a mistrial is declared. That doesn't necessarily preclude a retrial. The reason this is a close call is because the mistrial is based on prosecutor actions. My guess is that it will be held to be inadvertant, and the gubment will get a do over.

#7 Hendu's Gait


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Posted 14 July 2011 - 12:05 PM

I'm not a criminal lawyer, but the rule as explained in Crist v. Bretz, 437 U.S. 28 (1978) seems plain enough -- jeopardy attaches when the jury is sworn. Which likely means the case just went down the toilet bowl.

This is inexcusable. You don't mess with Judge Walton, and the prosecution had to have known better. FUBAR.

yeah, um, that's when there's already a dismissal or not guilty verdict. You have heard of cases being retried when the first trial goes all the way into deliberation, right?

EDIT: what WBV said

Edited by Hendu's Gait, 14 July 2011 - 12:06 PM.


#8 Plympton91


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Posted 14 July 2011 - 12:06 PM

This is a ridiculous waste of time and money stemming from a ridiculous waste of time and money that was those hearings. Hopefully the judge is a libertarian tea party type who sees it as such, and puts and end to the farce.

Edited by Plympton91, 14 July 2011 - 12:07 PM.


#9 ddeveau

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Posted 14 July 2011 - 12:08 PM

I have another question for the lawyers on the site. I wasn't following the case closely, but it sounded like the restrictions the judge placed on the prosecution were stifling, especially on information that would've helped establish McNamee's credibility. So my questions is does the prosecution have any recourse to challenge the judge's rulings on admissibility of evidence?

#10 WayBackVazquez


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Posted 14 July 2011 - 12:11 PM

I have another question for the lawyers on the site. I wasn't following the case closely, but it sounded like the restrictions the judge placed on the prosecution were stifling, especially on information that would've helped establish McNamee's credibility. So my questions is does the prosecution have any recourse to challenge the judge's rulings on admissibility of evidence?


What do you mean by stifling? Sounds like the wife said her husband told her Clemens said something. That's hearsay (within hearsay) and inadmissible. The Congressman opining on Pettitte's believability is improper opinion, overly prejudicial, and pretty much irrelevant.

Edited by WayBackVazquez, 14 July 2011 - 12:12 PM.


#11 uncannymanny

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Posted 14 July 2011 - 12:12 PM

This was like watching Andre the Giant wrestle my grandmother. Unbelievable. I don't even have words for the lack of intelligence of the US Attorneys here. Day TWO! Must be a record.

#12 dcmissle


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Posted 14 July 2011 - 12:13 PM

Every time there's a hung jury, by definition the jury had been sworn, and a mistrial is declared. That doesn't necessarily preclude a retrial. The reason this is a close call is because the mistrial is based on prosecutor actions. My guess is that it will be held to be inadvertant, and the gubment will get a do over.


As you recognize, there is a world of difference between a jury hanging on the verdict and a mistrial occasioned by prosecutorial misconduct. The problem for the prosecution is that Judge Walton made a finding that a fair trial was precluded because of the prejudicial nature of the misconduct. Is the DC Circuit going to second guess that? Highly unlikely. So then the question becomes how blatant the misconduct was. I suspect Judge Walton's findings on that question, whichever direction they go, will be granted substantial deference as well.

To the uninitiated -- if Clemens is ever convicted, he is in deep trouble with this particular judge, who metes out very heavy sentences. But he is a stickler for procedural fairness as well, and very well respected for that reason too. Nobody is going to have any sympathy for the prosecution if this was a clear cut violation of an evidentiary ruling; there is no pure heart/empty head defense for this stuff.




#13 dcmissle


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Posted 14 July 2011 - 12:16 PM

I have another question for the lawyers on the site. I wasn't following the case closely, but it sounded like the restrictions the judge placed on the prosecution were stifling, especially on information that would've helped establish McNamee's credibility. So my questions is does the prosecution have any recourse to challenge the judge's rulings on admissibility of evidence?


Typically, trial court judges get a high degree of deference on these sorts of issues.

#14 ddeveau

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Posted 14 July 2011 - 12:21 PM

What do you mean by stifling? Sounds like the wife said her husband told her Clemens said something. That's hearsay (within hearsay) and inadmissible. The Congressman opining on Pettitte's believability is improper opinion, overly prejudicial, and pretty much irrelevant.


I wasn't referring to the evidence that caused the mistrial. Maybe I was misinformed (as I said, I wasn't following closely), but I thought I read the judge was not allowing evidence about other players use of HGH, including those connected with McNamee, and at one point was considering not allowing any major league players to testify because he felt it could be too prejudicial to the jury.

However, let's forget what did or didn't happen in this case. Just generically, does the prosecution have any recourse to challenge a trial judges ruling on evidence admissibility? And does that change if a mistrial is declared?

#15 Joshv02

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Posted 14 July 2011 - 12:26 PM

This is inexcusable. You don't mess with Judge Walton, and the prosecution had to have known better. FUBAR.

Yeah, I think Reggie was in Superior Court when I was in DC (he may have just been elevated), but he was known for being a smart but very tough judge. Don't get on his bad side. Really stupid.

#16 WayBackVazquez


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Posted 14 July 2011 - 12:28 PM

I wasn't referring to the evidence that caused the mistrial. Maybe I was misinformed (as I said, I wasn't following closely), but I thought I read the judge was not allowing evidence about other players use of HGH, including those connected with McNamee, and at one point was considering not allowing any major league players to testify because he felt it could be too prejudicial to the jury.

However, let's forget what did or didn't happen in this case. Just generically, does the prosecution have any recourse to challenge a trial judges ruling on evidence admissibility? And does that change if a mistrial is declared?


I believe the prosecution may appeal only evidentiary rulings made before the jury is sworn (motions in limine).

EDIT: looks like the prosecution could raise the issue again and/or appeal prior to the new jury being sworn if there were a retrial after a mistrial.

Edited by WayBackVazquez, 14 July 2011 - 12:32 PM.


#17 ifmanis5


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Posted 14 July 2011 - 12:39 PM

ESPN legal analyst syaing now that not even a 1st year law student would be this dumb. Not even a someone taking a LSAT would make this mistake. Says this case is basically over.

Back in court in Sept to decide whether to re-try the case.

#18 dcmissle


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Posted 14 July 2011 - 12:46 PM

Excerpted from a Yahoo article --

Walton interrupted the prosecution's playing of a video from Clemens' 2008 testimony before Congress and had the jury removed from the courtroom. Clemens is accused of lying during that testimony when he said he never used performance-enhancing drugs during his 24-season career in the Major Leagues.

One of the chief pieces of evidence against Clemens is testimony from his former teammate and close friend, Andy Pettitte, who says Clemens told him in 1999 or 2000 that he used human growth hormone. Clemens has said that Pettitte misheard him. Pettitte also also says he told his wife, Laura, about the conversation the same day it happened.

Prosecutors had wanted to call Laura Pettitte as a witness to back up her husband's account, but Walton had said he wasn't inclined to have her testify since she didn't speak directly to Clemens.

Walton was angered that in the video prosecutors showed the jury, Rep. Elijah Cummings, D-Md., referred to Pettitte's conversation with his wife.

"I think that a first-year law student would know that you can't bolster the credibility of one witness with clearly inadmissible evidence," Walton said.

He said it was the second time that prosecutors had gone against his orders the other being an incident that happened during opening arguments Wednesday when assistant U.S. attorney Steven Durham said that PettiTTe and two other of Clemens' New York teammates, Chuck Knoblauch and Mike Stanton, had used human growth hormone.

Walton said in pre-trial hearings that such testimony could lead jurors to consider Clemens guilty by association. Clemens' defense attorney objected when Durham made the statement and Walton told jurors to disregard Durham's comments about other players.

There was no objection from Clemens' team during the Laura Pettitte reference, but the judge stopped the proceedings, called attorneys up to the bench and spoke to them privately for several minutes. Hardin pointed out during that time, the video remained frozen on the screen in front of jurors with a transcript of what was being said on the bottom.

Cummings had been quoting from Laura Pettitte's affidavit to the committee. "I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me had a conversation wth Roger Clemens in which Roger admitted to him using human growth hormones," the text on the screen read.


(emphasis added).

So two violations in consecutive days -- and the second one egregious enough for Walton to stop the proceedings on his own. You're before a "hanging judge" with enough good evidence to choke a crocodile and feel it necessary to resort to this?

There are serious recurring problems with federal prosecutors in the District of Columbia.



#19 TheoShmeo


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Posted 14 July 2011 - 12:47 PM

I'm told by one of my litigation partners that Oregon v. Kennedy is the key Supreme Court case on whether jeopardy attaches to a mistrial based on prosecutorial misconduct.

#20 uncannymanny

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Posted 14 July 2011 - 12:47 PM

ESPN legal analyst syaing now that not even a 1st year law student would be this dumb. Not even a someone taking a LSAT would make this mistake. Says this case is basically over.

Back in court in Sept to decide whether to re-try the case.


I vehemently disagree with the yahoos that spout the "the government shouldn't be spending our money on this!!1!" because upholding the rules of our justice system is extremely important, but this kind of thing is maddening. Because of these boneheads that money IS wasted and that's unacceptable.

#21 TheoShmeo


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Posted 14 July 2011 - 12:49 PM

This is a ridiculous waste of time and money stemming from a ridiculous waste of time and money that was those hearings. Hopefully the judge is a libertarian tea party type who sees it as such, and puts and end to the farce.

One, lying to Congress isn't exactly jay walking. Two, this is Roger Clemens we're talking about...don't let time and money get in the way of some seriously delicious opportunism. String the bastard up.

#22 Harry Hooper


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Posted 14 July 2011 - 12:59 PM

So, someone on the prosecution team thought the use of the video with Rep. Cummings was a clever way to get around the judge's denial of Mrs. Petitte's testimony? No wonder the judge dropped the hammer.

#23 ifmanis5


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Posted 14 July 2011 - 01:01 PM

The judge should have yelled at the prosecution.. 'Goodness gracious, of all the dumbest things I've ever seen...'

#24 snowmanny

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Posted 14 July 2011 - 01:02 PM

Well, lying to Congress about using steroids is criminal behavior while what the prosecuters did is merely incompetent and unethical. I am not sure which is worse, but I'd lean towards the latter and I'm inclined to think that the point has been made that witnesses before Congress cannot perjure themselves without consequence. I'd prefer they drop the charges and let these prosecuters spend their extra time auditing classes at Georgetown Law.

#25 Ed Hillel


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Posted 14 July 2011 - 01:09 PM

The argument is going to be that this action was so blatant that a highly qualified and experienced prosecutor of the DOJ wouldn't have accidentally fudged it up.

Edited by Ed Hillel, 14 July 2011 - 11:18 PM.


#26 Harry Hooper


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Posted 14 July 2011 - 01:18 PM

I don't see how the playing of a video that was already in the public domain could permanently taint the potential jury pool so that a retrial would be unfair to Clemens. What say ye, legal-types?

#27 uncannymanny

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Posted 14 July 2011 - 01:19 PM

This is a ridiculous waste of time and money stemming from a ridiculous waste of time and money that was those hearings. Hopefully the judge is a libertarian tea party type who sees it as such, and puts and end to the farce.


Lying to Congress is a waste of the Justice Department's money?

The reason the government is involved at all is the small fact of the billions of dollars in revenue the game, which has anti-trust exemption, brings in.

None of this is a waste of time or money. All the players had to do was tell the truth, but in this crappy celebrity culture, famous people think they're bigger than the country.

#28 uncannymanny

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Posted 14 July 2011 - 01:20 PM

I don't see how the playing of a video that was already in the public domain could permanently taint the potential jury pool so that a retrial would be unfair to Clemens. What say ye, legal-types?


I doubt being on YouTube has any legal weight.

#29 ifmanis5


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Posted 14 July 2011 - 01:22 PM

I don't see how the playing of a video that was already in the public domain could permanently taint the potential jury pool so that a retrial would be unfair to Clemens. What say ye, legal-types?

The judge explicitly told them not to. They disobeyed the judge. It's a no brainer.

#30 djbayko

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Posted 14 July 2011 - 01:23 PM

I don't see how the playing of a video that was already in the public domain could permanently taint the potential jury pool so that a retrial would be unfair to Clemens. What say ye, legal-types?


I took one law class in college, but this is simple - fair trial. Why do you think questionnaires are sometimes given to the jury pool and lawyers are allowed to challenge potential jurors during the selection process? Perhaps they should flash SoSh & tmz.com on the court projector too?

Bayko

#31 Ed Hillel


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Posted 14 July 2011 - 01:26 PM

He said "retrial," guys. Technically, this would be a new trial, but I understood what Harry was saying, particularly given his use of the term "jury pool." Then again, I'm used to this type of language at this point.

Edited by Ed Hillel, 14 July 2011 - 02:55 PM.


#32 ifmanis5


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Posted 14 July 2011 - 01:27 PM

Lori Pettittes's statement is pure hearsay it can't be entered into evidence, that's why the judge banned it from the trial.

EDIT: There was a trial previous to today's hearing where all parties agreed to not enter Lori's testimony into trial. When the prosecutors showed it today the judge basically had no choice but to call BS.

Edited by ifmanis5, 14 July 2011 - 01:31 PM.


#33 dcmissle


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Posted 14 July 2011 - 01:29 PM

I'm told by one of my litigation partners that Oregon v. Kennedy is the key Supreme Court case on whether jeopardy attaches to a mistrial based on prosecutorial misconduct.


After spending a few minutes on this, I agree with your partner. This 1982 decision speaks more directly to the issue than anything else I've been able to find and suggests that another prosecution would be barred by Double Jeopardy only if the prosecutors acted in bad faith and actually intended to cause a mistrial. A heavy burden for the defense.

However, there are some differences in the procedural context between this case and Oregon, and there are some later decisions suggesting that this 'actual intent' standard may not be required. Also, there are some indications of a split among the federal Circuits.

So at this point, I'm going to to backpedal out of this briar patch, recognize that every man has to know his limitations, and just shut up.

EDIT --

Ed, check out OREGON v. KENNEDY, 456 U.S. 667 (1982). There was no ruling on the merits, but a mistrial. And had the prosecutor's misconduct satisfied the standard set forth in the opinion, the subsequent prosecution would have been barred by Double Jeopardy.

Edited by dcmissle, 14 July 2011 - 01:36 PM.


#34 Harry Hooper


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Posted 14 July 2011 - 01:38 PM

Thanks, Ed, I meant a new trial with a new jury. The hearings are viewable on C-SPAN among other sites.

#35 Ed Hillel


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Posted 14 July 2011 - 01:42 PM

Ed, check out OREGON v. KENNEDY, 456 U.S. 667 (1982). There was no ruling on the merits, but a mistrial. And had the prosecutor's misconduct satisfied the standard set forth in the opinion, the subsequent prosecution would have been barred by Double Jeopardy.


Yeah, I was actually editing my post as you wrote this. I believe the standard is intent [by the prosecutor] to provoke a movement for mistrial [from the defendant]. In the case at issue in Kennedy, the prosecutor asked a witness "is it because he [the defendant] was a crook?" on cross examination. And in that case, it was stipulated by both parties that there was no intent on the part of the prosecutor, so a second trial was not barred on the DJ grounds. This doesn't seem as blatant as that one, but I haven't been inside the courtroom for any of the motions hearings.

I actually do remember this case now, but I don't remember where I remember it from. :c070: I think I thought it was an issue besides DJ. One that would allow Clemens to get some sort of compensation, but that would still allow a new trial.

Edit - Actually, these mistakes do seem pretty blatant. Sigh...

Edited by Ed Hillel, 14 July 2011 - 02:56 PM.


#36 jmcc5400

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Posted 14 July 2011 - 01:43 PM

I'll never understand why the government let John McNamara and Grady Little head the prosecution team.

#37 Seabass177


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Posted 14 July 2011 - 01:45 PM

If I'm reading this thread correctly, and I like to think that I am, Ashley Judd can now murder Roger Clemens and not be prosecuted. Lawyers?

#38 ifmanis5


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Posted 14 July 2011 - 01:49 PM

If I'm reading this thread correctly, and I like to think that I am, Ashley Judd can now murder Roger Clemens and not be prosecuted. Lawyers?

I think you mean Mindy McCready.

#39 uncannymanny

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Posted 14 July 2011 - 01:50 PM

I'll never understand why the government let John McNamara and Grady Little head the prosecution team.


:rolling:

Local lawyer weighs in on EEI (sorry no link; copying from their app):

Boston lawyer Harry Manion joined Mut and Merloni Thursday, saying the prosecution in Roger Clemens' perjury trial was "reckless" and "disrespectful" with their use of inadmissible evidence, leading to a mistrial. He added that he did not believe there would be another trial for Clemens due to double-jeopardy.

"Here's the question: Is the declaring of the mistrial while the defendant, Roger Clemens, is at jeopardy? In the law, that means he's at trial," Manion said. "Jeopardy is attached for the purpose of double-jeopardy the constitutional concept that you cannot be be prosecuted twice for the same crime."

"I'm telling you, what you're going to be hearing over the next 24 hours [is] a motion from the defendant, [Clemens' attorney] Rusty Hardin saying, 'Jeopardy attached. You can't try him twice. It wasn't my fault. It wasn't my fault. Release him, and call this over.' If that's the case, he walks away a completely free man, never to be prosecuted again for anything that happened in Congress."

The prosecution twice made mention of Laura Pettitte's account of what her husband, Andy, had told her about a conversation between he and Clemens. It was ruled inadmissible evidence prior to the trial, and when the prosecution showed video of her 2008 affidavit, U.S. District Jude Reggie Walton took a recess and eventually declared the mistrial.

"I try cases all the time. I'm a trial lawyer," Manion said. "This is what all those pre-trial motions are about. They're called motions in limine. It's the judge telling the lawyers, 'Look. In your opening statement, in your evidence, stay away from the subject matter. I ruled it inadmissible.' If you tread over the line, you get yourself in trouble with the judge.

The defendant can get sanctioned, admonished, but that the defendant has a lot of rights. The prosecutor does not. The prosecutor has to obey the letter of the law. When a judge says, 'Stay away from Mrs. Pettitte's affidavit, stay away from the conversations she allegedly had,' and then you go refer to it in your opening, and worse, you play a tape of it involving a congressman in which the conversation is alluded to and highlighted on the screen and sits in front of the jury, that is such reckless conduct, and such disrespectful conduct that I could see Judge Walton -- who is nobody to mess with, I mean he is a real tough, strict judge. I could see him walking out at 2:00 this afternoon and granting a motion to dismiss this prosecution."

A hearing to revisit the matter is scheduled for Sept. 2, but Manion believes that all of the attention given to the way this week's trial fell apart that getting an indifferent jury would be too challenging.

"This is also just absolutely terrible pre-trial publicity. The entire world knows now what has happened, and you're never going to get a fair jury. You can't even change the venue. Fundamental fairness [says] don't prosecute Roger. He has a big chance right now to walk away from this. We're going to find out I think in the next 24 hours whether that happens or not."


This could be the bungle of the century.

Edited by uncannymanny, 14 July 2011 - 02:04 PM.


#40 Spud

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Posted 14 July 2011 - 02:10 PM

I don't see how the playing of a video that was already in the public domain could permanently taint the potential jury pool so that a retrial would be unfair to Clemens. What say ye, legal-types?


In addition to the other reasons given, the fact that a video is in the public domain doesn't mean what's in it is true and it surely doesn't cure the hearsay problem of a Congressman recounting what Mrs. PettiTTe said her husband said. In addition, verdict are supposed to be based on the evidence presented in court. Outside research by jurors is also grounds for a mistrial.

These clowns either wanted a mistrial or are completely clueless.

#41 Ed Hillel


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Posted 14 July 2011 - 02:19 PM

From Kennedy:

2. Where a defendant in a criminal trial successfully moves for a mistrial, he may invoke the bar of double jeopardy in a second effort to try him only if the conduct giving rise to the successful motion for a mistrial was prosecutorial or judicial conduct intended to provoke the defendant into moving for a mistrial. A more general test of "overreaching" is rejected because it offers virtually no standards for its application and because such a rule may not aid defendants as a class. By contrast, a standard that examines the prosecutor's intent is a manageable standard to apply. Since the courts below both agreed that the prosecutor did not intend her conduct to provoke respondent into moving for a mistrial.


http://supreme.justi...7/case.html#671

I guess the Clemens argument will be that it was so incredibly stupid and such an amateur move from an experience attorney that it had to be intentional. It would be fun to see the prosecution stand in front of a judge and argue "no, your honor, I swear, I'm just really stupid."

Edited by Ed Hillel, 14 July 2011 - 02:33 PM.


#42 Drocca


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Posted 14 July 2011 - 02:21 PM

I'm a fan of any thread where we get to learn the law from Ed.

#43 SumnerH


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Posted 14 July 2011 - 02:26 PM

ESPN legal analyst syaing now that not even a 1st year law student would be this dumb. Not even a someone taking a LSAT would make this mistake.


Not even a first year viewer of Law and Order would be this dumb.

#44 Smiling Joe Hesketh


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Posted 14 July 2011 - 02:33 PM

From Kennedy:



http://supreme.justi...7/case.html#671

I guess the Clemens argument will be that it was so incredibly stupid and such an amateur move from an experience attorney that it had to be intentional. It would be fun to see a prosecution stand in front of a judge and argue "no, your honor, I swear, I'm just really stupid."


Damn you Ed, I just checked on our version of Lexis and it hasn't been overruled or overturned since it was decided.

#45 Harry Hooper


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Posted 14 July 2011 - 02:39 PM

From Kennedy:



http://supreme.justi...7/case.html#671

I guess the Clemens argument will be that it was so incredibly stupid and such an amateur move from an experience attorney that it had to be intentional. It would be fun to see the prosecution stand in front of a judge and argue "no, your honor, I swear, I'm just really stupid."



Maybe the prosecutors will claim the non-redacted version of the hearings video was shown inadvertently.


From SI.com:

Judge Walton indicated he would be willing to hear the government's request for a retrial on September 2, but seemed skeptical of allowing a retrial. He suggested that a retrial could constitute double jeopardy. Pursuant to the Fifth Amendment to the U.S. Constitution, double jeopardy bars repeated prosecutions for the same specific offense. For Clemens, retrying him on the same perjury and false statement charges, especially since they would be based on the same underlying incriminating material from his Congressional testimony, would likely constitute double jeopardy.

The government can appeal Judge Walton's decision to the U.S. Court of Appeals for the D.C. Circuit, but don't expect a reversal. Appellate courts are highly deferential towards how a trial judge manages the trial and how he or she makes decisions related to the fairness of the trial.

For the Justice Department, the Clemens mistrial, when coupled with Barry Bonds escaping conviction on all but an obstruction of justice charge, will lead to serious questions about the wisdom of prosecuting for perjury baseball players who are alleged to have used steroids. Millions of tax dollars and thousands of staff hours have been poured into these prosecutions. At a time when the federal government is asking its citizens to sacrifice, perhaps the government should think more critically about how it allocates its resources for trials.

For Clemens, the mistrial makes it highly unlikely that he will ever be convicted of the charges against him. It does not, however, provide him the vindication of a "not guilty" verdict; a mistrial merely indicates that the government fumbled the case in a way that prevents a fair trial. For a pitcher so deeply interested in his baseball legacy that he wanted to testify before Congress, a mistrial may not greatly help his chances of reaching the Hall of Fame.

Perhaps the biggest winner today is the much-maligned Rusty Hardin, who led Clemens' legal team, which deserves credit for detecting the prosecution's error.

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. Follow him on Twitter.



#46 Doctor G

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Posted 14 July 2011 - 02:45 PM

if this was the second time the prosecuting attys went against Walton's orders( the first being the reference to HgH use by Pettitte and Knoblauch) it is hard to believe this was just stupidity.

Given the change in political climate since this action was initiated maybe the DOJ told the prosecutors to take a dive and get out of the arena.

Edited by Doctor G, 14 July 2011 - 02:49 PM.


#47 th@tkid

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Posted 14 July 2011 - 07:32 PM

certainly seems like that. I mean with the talk of no Social Security for 80 million people perhaps this was the cheapest way out for the government. Would have been better timing to have pulled it off prior to Casey Anthony's escape from death row.

#48 TheoShmeo


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Posted 15 July 2011 - 07:11 AM

Assuming these prosecutors have irrevocably blown their case, I can deal with the fact that Clemens will get off. As much as I hate the bastard, going to prison for, essentially, being an arrogant, lying idiot seems harsh.

The thing that still really frosts me is that we will not get to see Clemens get exposed on a public stage for exactly what he is, and in particular we will be deprived of the spectacle of Big Game Andy testifying in full glory about Clemens' PEDs use and the fact that he's a blatant liar.

If this bothers me, imagine how Brian McNamee feels this morning. Hardin took McNamee apart in his opening and due to the government's incompetence, there will be no effective rebuttal.

The silver lining is that assuming Clemens indeed gets off on a technicality, he will never get the redemption and exoneration he was hoping for. After the thrill of victory fades away, Clemens will be left with the realization that most people will assume that he beat the rap, was a cheater and lied to Congress. That was a great day for Clemens' lawyers and a slightly less great day for the Texas Con Man himself.

#49 smastroyin


  • simpering whimperer


  • 16418 posts

Posted 15 July 2011 - 07:33 AM

If I was brought before a kangaroo court of self-important politicians who are basically grandstanding for headlines, I would probably lie too.

The outrage about lying to CONGRESS to me is overblown. We never needed Congressional hearings on steroids in baseball and the argument that it carries any benefit to society is specious at best. I don't carry as much hate for Clemens and many others, but to me it really does seem like "I hate Roger (/Bonds/Palmeiro/Schilling/whoever) so I'm glad Congress and DOJ and everyone else that has better things to do decided to try and take him down a notch." Congress shouldn't be in the business of taking private citizens down a notch, and I hope the lesson of this entire affair is that they stop pissing money away tilting at windmills. I don't really want to have all the same arguments about the seriousness of perjury, etc. I get it and I get why perjury is bad. But when the case being examined is a huge stinking pile of propaganda shit, I honestly can't get worked up about the misdeeds of the accused. Others feel differently I know and you aren't going to change my mind and I'm not going to try to change anyone else's.

Take away the anti-trust exemption if needs be and get government's nose out of baseball forever. Please.

#50 TheoShmeo


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Posted 15 July 2011 - 07:49 AM

I agree that Congress should not have held hearings about steroid usage in baseball, especially after the Mitchell Report had been issued and a testing system had been implemented.

That said, I do think that lying under oath and lying to Congress is a very bad thing, and that whether the underlying hearing in a particular case is of dubious nature doesn't change that. As Smas said, we just wont agree on that.

But for me, the context isn't all that important. I was loving that Roger was being called out for brazenly lying to all of us about his PEDs use. This was quintessential Roger being Roger; just saying whatever he wants to say no matter how preposterous it is, and expecting us to believe it because, you know, he said it. It would have been nice to see the bully get beaten up.

Ah well, I'll have to settle for smaller victories like seeing the clock strike midnight on Bartolo Colon.

Edited by TheoShmeo, 15 July 2011 - 08:06 AM.




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