Yesterday, the airwaves were awash in commentary on a federal judge’s decision to declare a mistrial in United States v. William R. Clemens a/k/a Roger Clemens, No. 10-cr-00223, involving the pitching legend’s alleged perjury before a U.S. congressional Committee in February 2008. On one sports talk call-in show, a caller purporting to be a criminal defense attorney explained that the case had to be re-tried because "double jeopardy does not attach until a case is submitted to the jury for deliberations". Huh? Wrong! Jeopardy actually attaches in any criminal case the moment a jury has been sworn, a proposition that dates back to Downum v. United States, 372 U.S. 734 (1963). Further to the disinformation, a newspaper columnist wrote today that [to paraphrase], "a dismissal is unlikely because the misconduct occurred very early into the trial." Again, huh? The fact is any case is susceptible to dismissal at any time after jeopardy attaches upon declaration of a mistrial, and is particularly susceptible to the same whenever a judge determines that the government’s misconduct was intended "to goad the defendant into moving for a mistrial." Oregon v. Kennedy, 456 U.S. 667, 676 (1982). Accordingly, only if the judge in Clemens decides that the government’s conduct was unintentional and that Mr. Clemens’ right to a fair trial has not been substantially impaired or affected as a result of the conduct, will the trial go forward. If it does, the government, as in any perjury case, will still have an uphill battle given that it must prove each of three required elements beyond a reasonable doubt before a guilty verdict may be returned: 1.) that Mr. Clemens testified under oath within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, in this case before a Congressional Committee; 2.) that he gave a false answer(s) or declaration(s) that was material to the Congressional investigation; and 3.) the answer he gave was false. See 6th Cir. Model Jury Instructions. Federal Pattern Jury & Model Jury Instructions § 94.
All of which leads to the question, if the Court concludes that the government’s conduct, though amateurish and sloppy, was unintentional, should the case be retried? In my opinion, it should. I understand the public’s frustration over what they believe to be inordinate sums of money being spent on a matter they believe to be of negligible importance to bring this case to trial (some estimates claim that up to $10M has already been spent). The fact is that most of the money that has been spent was in the context of pre-trial investigation. An outright dismissal will actually exacerbate the problem by essentially flushing all that money down the drain, without any resolution. In other words, since the government has already spent so much of the public’s money in order to place this case in a trial-ready posture, we may as well move forward. Also, perjury is a static and arguably victimless crime. It’s static in the sense that it is what it is and will not be affected by the passage of time, and it is victimless in the sense that no individual is, or was, directly affected by the alleged crimes. Therefore, there will not be the same level of emotional turmoil or roller-coaster effect or re-victimization that there can be in cases where individual lives or interests (other than Mr. Clemens’) will be affected by a re-trial. Most importantly, though, to folks like me who ply our trade in the criminal justice system, regardless of which side of the aisle we work on, the simple truth is that oaths matter. Indeed, our entire Justice System is based on a presumption that sworn testimony will be truthful and that witnesses who swear "to tell the truth" under pain and penalty of perjury, ("so help them, God"), mean it. In my opinion, those of us in the Judicial System not only need to show we mean it too, but also that there are consequences for lying under oath. Whether fair or not, there is no better way to do this than to bring to trial a case like United States v. Clemens, with all the accompanying public interest and attention, and with much of the public "watching". Besides, with Mr. Clemens having been so eager to adjudicate the case in civil court, in his pending suit against Brian McNamee, I would think he and his attorneys would welcome the opportunity to resolve the issue of whether or not he used PEDs once and for all outside the court of public opinion and inside a courtroom where each and every allegation must be proven beyond a reasonable doubt.