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Searching for meaning in the Clemens mistrial ruling

Roger Clemens leaves the federal courthouse with attorney Rusty Hardin in Washington

Former Major League Baseball pitcher Roger Clemens (C) leaves the federal courthouse with attorney Rusty Hardin (R) in Washington July 14, 2011. A judge declared a mistrial on Thursday in the perjury trial of baseball great Clemens, because prosecutors violated an order that barred certain information from being introduced to the jury. Clemens is facing charges that he lied to the committee when he denied taking steroids and human growth hormones from 1998 to 2001. The pitching star and one-time Hall of Fame contender has denied taking drugs or lying to Congress. REUTERS/Yuri Gripas (UNITED STATES - Tags: SPORT BASEBALL CRIME LAW)


It takes a pretty unique intellect to look at what happened with the Roger Clemens case yesterday -- a mistrial ending the thing before it began -- and consider it anything other than awesome news from Roger Clemens’ perspective. No, he may not be 100% out of the woods yet, but when you get your criminal trial stopped on a mistrial due to the government screwing up royally on Day Two, that’s a pretty darn good thing.

But Mike Lupica wants Roger Clemens to know that he has no reason to celebrate at the moment, noting that most legal experts don’t think that the potential knockout punch of the case -- an argument that a retrial would be double jeopardy -- is likely to be successful. That much may be true. I agree that it’s a stretch that the judge will say double jeopardy attaches and thus prevent a re-trial. But how Lupica can look at this as anything other than a good development for Clemens is somewhat mystifying to me. Take this quote:

“If (Clemens) is convicted,” Reggie Walton said, “knowing how I sentence, he goes to jail. He is entitled to a fair trial. He cannot get that now.” In that moment, it was as if Walton was coming at Clemens and his lead attorney, Rusty Hardin, with high, hard stuff of his own.

Lupica goes on to quote an attorney who believes that the judge was sending a message to Clemens as well, with that message being “you had better make a deal now.” Never mind that there is no deal on the table available to Clemens at the moment.

Contrary to Lupica and his source’s view, all I see is a judge who has a reputation for giving out harsh sentences acknowledging how serious the government’s error was. He’s saying Clemens faced real consequences if he lost -- which he did -- thus making the prosecution’s error all the worse. His comment had nothing to do with his assessment of the merits of Clemens’ defense. Indeed, it would be improper for the judge to actually say something which signals his opinion as to whether Clemens was truly in deep doo-doo because, at least potentially, there’s going to be another jury seated in a few months and he can’t be in the business of prejudicing them. He’s saying that the gravity of the government’s mistake was huge. Nothing more.

Or maybe something a little more, but not what Lupica is thinking.
At least one legal observer thinks that the mistrial ruling -- in action, if not in the judge’s words -- gave insight into the judge being not particularly impressed with the government’s case:

Artur Davis, a former federal prosecutor and former United States representative from Alabama, said that the swift decision revealed Walton’s underlying opinion of the case.

“The judge could have just admonished the prosecution and embarrassed them enough to undermine their credibility with the jury, but he purposely chose not to do that,” Davis said. “For him to take the very extreme step of stopping the trial says he was fundamentally skeptical of the case.”

That may be a stretch too. And of course, you know what they say about opinions and how everyone got one. But I see Lupica’s view of this thing being colored by some measure of dissatisfaction that Clemens is getting away with something, causing him and his source to stretch to find some sort of negative here. And I get that because, man, I’m not a big fan of Roger Clemens or Rusty Hardin myself.

But when you wake up in the morning on trial for your freedom, and you go to bed that night with that trial gone and your prosecutors humiliated, that’s a pretty damn good day. That Lupica can’t acknowledge that is rather curious.