Should the Government Get to Re-Try Roger Clemens?

Just today a federal judge granted a mistrial for Roger Clemens in his perjury and obstruction trial in Washington, D.C. During the federal government's case, it began playing a video recording of Clemens' testimony before Congress (in which he allegedly lied because he told them he never took steroids or other banned substances.) In that video were comments by a Congressman referring to Andy Petitte's wife's statement in which she repeated that her husband told her that Clemens admitted to taking the substances. Before trial, the judge had ruled that her repetition of what her husband told her was not admissible. It was clearly inadmissible hearsay. (However, Andy Petitte can testify to what Clemens told him, since that is proper evidence of a party's direct admission.)

Ostensibly the unredacted Congressman's comment was an oversight by the prosecutors. However, if Clemens' lawyers can show that it was not a mistake but an intentional act, he could get the case dismissed under the Double Jeopardy clause. Ordinarily, under a 1982 U.S. Supreme Court case, Oregon v. Kennedy, when a mistrial is granted after a defendant's motion (as here), the defendant cannot then bar a second trial. However, if the prosecutors can be proven to have intended to "provoke the defendant into moving for a mistrial," then a double jeopardy dismissal could be granted. Obviously it will be hard to show their oversight in Clemens' case was intentional. Without a clear pattern of violating the court's rulings, intentional conduct will not be shown--short of a prosecutor admitting it!

The real question is: "Should the government be trying Roger Clemens at all?" Many people have derided the use of 'precious government resources' in going after a now retired, well paid athlete who never harmed anyone (save for a few batters.) After all, aren't there more important crimes to prosecute than lying to Congress? For starters, if they didn't try him, wouldn't Barry Bonds' supporters be crying foul (not fair?) And what about Martha Stewart, who was convicted of lying to federal investigators, wouldn't her fans bemoan federal waffling?

And what are federal authorities supposed to do? Let a few lies go and say "Ok, it's only baseball, and Congress shouldn't be concerned about some ballplayers doping themselves anyway!" No, they couldn't let it go. He's too well known in sports and was really one of the 'great' players like Bonds. It would smack of favoritism or elitism or whatever people think lets the rich and the famous off the hook.

Nope, the goverment should re-try Roger Clemens.