By Nathan Koppel/WSJ blog
It feels like old home week at the Law Blog, with the return of some of our most prominent alumni. First Anthony, now Clemens.
Roger Clemens will be in court today for a hearing that could not be any weightier. At issue: Can the government retry the fastballer for allegedly lying to Congress when he denied the use of performance enhancing drugs?
The famous Double Jeopardy clause, which limits the extent to which defendants can be retried for the same crime, is likely to get a workout at the hearing. (Here’s a CNN preview of the proceedings.) Another topic will be whether prosecutors deliberately misbehaved during the Clemens trial.
To recap, Judge Reggie Walton declared a mistrial this summer after prosecutors introduced inadmissible evidence. The government showed jurors a tape of a member of Congress questioning Clemens — a clip that included mention of a statement by Laura Pettitte – the wife of one of Clemens’ former teammates – in which she said to investigators that her husband had told her about Clemens’ use of human growth hormone back in 1999 or 2000. Walton had previously ruled the conversation inadmissible as hearsay.
“The government’s use of this particular exhibit was premeditated,” Clemens’ legal team wrote in a filing last week, according to CNN.
Prosecutors have said they did not to intend to introduce the inadmissible evidence.
Click here for an earlier Law Blog post featuring legal experts opining on whether Clemens should have to face another prosecution.Some lawyers feel the government should not get to benefit from its blunder, while other legal eagles note that mistrials usually don’t give rise to Double Jeopardy issues.