Constitution Check: Can Roger Clemens be put on trial again for perjury?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution  and what duties it imposes or rights its protects. Today’s topic: the meaning of “double jeopardy.”

The constitutional claim:

“I think what we have to do at this point is assess whether the government, having precipitated this mistrial, whether the government can now retry this case or whether re-prosecution is barred by double jeopardy.”

– U.S. District Judge Reggie B. Walton, on July 14, after declaring a mistrial and sending the jury home in the trial of Roger Clemens on federal charges of perjury and obstruction of Congress for Capitol Hill testimony he gave in 2008, denying that he had used steroids..

Roger Clemens. Flickr photo by Keith Allison

The constitutional response:

One of the most precious rights guaranteed by the Constitution is included in the Fifth Amendment: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

This protection against double jeopardy begins the moment that a jury is chosen and sworn in. The key question in the case of Roger Clemens is when the protection stops.

And the answer is: It depends.

The right clearly applies after a jury has reached a not-guilty verdict. But the extent of protection is less clear when a trial is ended before a jury reaches a verdict. If a jury is deadlocked and cannot reach a verdict, a mistrial is declared and a new trial usually is allowed.

Another kind of mistrial, declared in Clemens’ case, came with the ruling by Judge Walton to stop the trial on the second day of testimony.  The judge was troubled because the jury had watched part of a videotape that it was not supposed to see.

The recording was of Clemens testifying before Congress.  He was asked about a statement made by Laura Pettite, wife of pitcher Andy Pettite, who was Clemens’ Yankees (and Astros) teammate.  She related what Andy said Roger had said, supposedly admitting that he had used “human growth hormones.”  Before the trial, the judge had ruled out Mrs. Pettite’s comments as hearsay — what a person heard from another person about what a third person had said.

Somehow, and prosecutors could not explain why, Mrs. Pettite’s comment was not edited out of the videotape.  Her husband had been expected to be the prosecutor’s star witness against Clemens, and the judge said he would not allow the forbidden hearsay to bolster Pettite’s credibility.

Four factors to consider

The judge said he could not “un-ring the bell,” and the sound of that bell would threaten the trial’s fairness for Clemens. The judge also made clear that if Clemens were convicted, the judge probably would send him to jail, so the prejudice, if there were any, would be great.

After declaring a mistrial and blaming it on the prosecution, Judge Walton told Clemens’ lawyers to file any motions they wanted by July 29.  Prosecutors get to answer on August 19, and the judge will hold a hearing September 2.

Clemens’ lawyers are almost sure to file a motion to dismiss all charges, claiming that a second trial would amount to “double jeopardy.”

Clemens’ right under the jeopardy clause was in effect at the time: The jury was seated and hearing evidence.  But did the mistrial ruling end the jeopardy?  That is what Judge Walton has to decide.

Among the factors the judge will take into account are:

  • why the defense did not object immediately
  • whether the prosecution’s error was so serious that they undercut their whole case
  • whether the trial had gone on long enough to amount to an ordeal for Clemens
  • whether the charges are so serious and the government’s cost in preparing the case so significant that a new trial would seem to be justified.

His decision will determine whether Clemens faces another trial, or whether the prosecution has struck out.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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