Most legal experts who reviewed copies of the Clemens transcripts say he probably will face a second trial under rules established by the Supreme Court. They said that when a mistrial is requested by the accused, the general rule is that the guarantee against double jeopardy does not prevent another trial unless the judge finds prosecutors provoked a mistrial. But the experts point out there’s no indication prosecutors would have wanted to start their case over so soon.
But the Clemens team argued “this is the rare case’’ that meets the standard.
“By the time the government provoked the mistrial, its highly experienced counsel had suffered a series of setbacks that cast doubt on the case against Mr. Clemens,’’ defense attorneys wrote. They pointed out that prosecutors have not said they made a mistake and argued that the violations “were critical, hotly contested pretrial issues that no experienced prosecutor could simply have missed when it came time to finalize exhibits and prepare witnesses.’’
Prosecutors have three weeks to respond. Walton has set a Sept. 2 hearing on the retrial issue.
Clemens’s attorneys argued that the record-setting pitcher has lived in a continuing state of anxiety and insecurity over the possibility that even though innocent he may be found guilty. They argued a second trial would reward government misconduct by giving prosecutors a chance to improve jury selection, hone their trial strategy and address other issues raised early in the first trial.
“The government had its day in court and squandered it with misconduct that irretrievably wasted time, money and the opportunity for a one-time, fair resolution of these charges for all involved,’’ Clemens’s attorneys wrote in their filing.
