Before Judge Reggie Walton delivered his order of mistrial today, he lectured U.S. Attorneys prosecuting Roger Clemens. And while the lecture went on for a while, and while it covered a lot of ground, it can best be summarized as follows: "You guys are a bunch of morons."
Perjury is a hard case to prosecute because of the intent element. But I thought that Clemens could lose because of his attorney, Rusty Hardin. I still don't understand what Hardin's theory of defense is since lying under oath to Congress is lying under oath to Congress, no matter how legitimate the hearing might be. However, after today, we may never find out what Hardin was trying to get at because the prosecution today did something so stupid that the O.J. Simpson prosecutors who came up with the have him put on the glove idea were laughing.
Last week, when going through pretrial motions and working on jury selection, Judge Walton handed down an edict. The name of Laura Pettitte was not to be mentioned. Her testimony was not to be referenced. In no way could her statements be used to buttress the statements of Andy Pettitte. The only way, the judge decreed, that she could be witness, or any of her past statements used, was if the statements of Andy Pettitte were attacked, and then she could be brought in to shore up his statements.
The order's clear. NO LAURA PETTITTE!
So today the prosecution was playing more video for the jury. And this video consisted of the actual hearings before Congress. And they played a snippet of Rep. Elijah Cummings questioning Clemens. A portion that included Cummings speaking about Andy Pettitte's "misremembered" testimony. But they let the video keep running, to where Cummings started speaking about Laura Pettitte. And they didn't stop the video. They let it keep going as the Cummings went on and on about Andy and Laura Pettitte. Finally Judge Walton ordered a halt to the video and called the attorneys up to the bench. Just one more problem, while he was lecturing them about his orders on Laura Pettitte, the video was frozen on an image displaying the contents of Mrs. Pettitte's affidavit. And the jury read it.
The judge then sent the jury out and let the prosecutors have it for well, violating an explicit order. He then went off to consult with a fellow judge before returning about half-an-hour later to declare a mistrial.
Before I go further, one thing: HOW DAMN STUPID WERE THESE PROSECUTORS? Seriously, someone tell me how an attorney could make such a stupid mistake. I thought Hardin might get on the judge's bad side during the trial because he has a history of getting on the bad side of Federal judges. But the prosecutors should have known better.
This was such a stupid move that not even Nancy Grace would have made that mistake, and one of the reason's Nancy Grace hectors people on TV is that she is a failed prosecutor known for having her convictions overthrown on appeal because she played fast and loose with the rules of court.
Once again I've got to ask: JUST HOW STUPID ARE YOU TO SO BLITHELY IGNORE AN EXPLICIT ORDER OF THE COURT?
So a mistrial has been declared. What does that mean? Generally it means a do-over. But this time, maybe not. In criminal trials, there's a thing known as double jeopardy in which a defendant can't be tried twice for the same thing. Usually, double jeopardy's not invoked until the jury returns with a verdict, but in actuality, it goes into effect as soon as the jury is seated and testimony begins.
There's no clear cut answer that I've seen as to what happens next, as to whether there will be another shot at a trial or whether Roger Clemens is off the hook. I've seen attorneys who specialize in criminal law say it's double jeopardy and I've seen others say that no, it was an innocent mistake and there will be another trial. But to me, from the statements of the judge, double jeopardy will attach and there will be no trial. Roger Clemens will be a free man.
We won't know the answer until September 2 when all of the parties return to the courtroom of Judge Walton. And as I often am, I could end up being like Nancy Grace last week and being proven to be an absolute fool and idiot.
But no matter what, I'll never be as big an idiot as the prosecution was today, because as I learned in law school, when a judge tells you not to do something, you don't do it.
We didn't come out here to play tiddlywinks, son.
-Hal Smith
