Re: Judge declares mistrial in Clemens case-Your thoughts
posted at 7/14/2011 1:48 PM EDT
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.”