Roger Clemens Off the Hook for Allegedly Lying About Steroids?

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The government’s court case against Roger Clemens for lying about the use of anabolic steroids and human growth hormone went down in flames after federal prosecutors made a colossal mistake that forced the judge to declare a mistrial. This doesn’t necessarily mean that Roger Clemens is off the hook. Most attorneys and legal experts feel there is a good chance that U.S. District Judge Reggie Walton will allow the government to pursue a second trial against Clemens.

“It is one thing when something like this happens three weeks into a month-long trial where the defense has poked big holes in the government’s case and effectively crossed main witnesses,” said Andrew Wise, a white-collar attorney with the Washington firm Miller & Chevalier. “But when you are on day two of a month-long trial, it is harder to argue that the government was throwing in the towel and goading the defense into seeking a mistrial so they could have a fresh start.”

The Fifth Amendment of the U.S. Constitution protects individuals against double jeopardy. However, University of Iowa law professor Jim Tomkovicz thinks it is unlikely that “double jeopardy” will prevent Clemens from being tried again. According to Tomkovicz, there is only one “very, very tiny exception” that will prevent a second trial in the event of a defense-requested mistrial.

“According to the Supreme Court, for double jeopardy to bar the second trial it must be proven, and the judge must find, that the prosecution did whatever it did with the intent to provoke a mistrial request by the defense,” Tomkovicz said. “In that case, and only in that case, the law views the situation as if the government deprived the defendant of the right to this particular jury and the right to suffer the ordeal of trial only once. No other improper prosecutorial intent or bad faith will bar retrial following a defense-requested mistrial.”

Harvard law professor Alan Dershowitz apparently thinks that a good attorney can exploit that “very, very tiny exception“. Dershowitz is the attorney who successfully appealed obscenity charges against Harry Reems for “Deep Throat” and who also worked on O.J. Simpson’s “dream team”.

Harvard law professor Alan Dershowitz said there’s no innocent explanation for why prosecutors put inadmissible evidence in front of the jury.

“The government constantly does this because they think they can get away with it,” Dershowitz said. “When you are preparing a case for so long, you don’t make errors like this. I have a high level of confidence that a good lawyer could keep this case from being retried.”

Judge Walton will determine whether Roger Clemens will go free or whether the government will have another chance to prosecute him in a second trial on September 2, 2011.

Roger Clemens

Photo credit: Keith Allison

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