Two weeks after a federal judge declared a mistrial in Roger Clemens' perjury and obstruction of justice trial, attorneys for the baseball great filed a motion to dismiss the federal charges against him once and for all.
U.S. District Judge Reggie Walton scheduled a September 2 hearing on the issue of whether the double jeopardy clause of the U.S. Constitution blocks further prosecution of the charges against the legendary pitcher.
The double jeopardy clause bars the government from trying any person twice for the same offense. When prosecutorial misconduct provokes the defense to request mistrial, as it arguably did in Clemens' case, the prosecution doesn't get a second bite at the apple.
Clemens' attorney argues that to permit another trial would encourage the prosecution to do whatever it could get away with at a trial, knowing it could retry the defendant if its errors cause a mistrial.
Six days into the trial against Clemens, federal prosecutors showed jurors a video and written transcript of hearsay testimony that the court had ruled inadmissible before the trial began. The judge declared a mistrial.
In his motion to dismiss the federal charges, Clemens' lawyer said that the U.S. Attorney's Office squandered its day in court, knowing that a second trial would give prosecutors a chance to use information it learned during the first trial to improve its chances of winning.
Clemens has been under investigation or indictment since 2007. His attorney argues that the constitution would be violated by forcing Clemens to continually to endure the embarrassment, expense and ordeal of living with federal charges hanging over his head, all because the prosecutor ignored the court's pretrial order.
Source: Thomson Reuters News and Insight, "Baseball great Clemens seeks dismissal of charges," James Vicini, July 29, 2011