Jeopardy is attached once the jury is sworn in.

He can be retried on the same charges until he has either been found 1) guilty, 2) not guilty, or (3) the judge, or prosecuting attorney decides not to go any further with this, and drops it. You can be retried over and over. It has to be done in a timely manner. You have the right to a speedy trail.

My recollection is that a mistrial issued based on a motion by the defendant terminates double jeopardy, though.

I don't recall exactly what the rule is, but unless the prosecution asked for the mistrial (they clearly didn't), I believe the mistrial essentially acts as a non-suit and the case can be re-tried unless the court determines that the defendant would be materially prejudiced by the sequence of events.

We'll find out in a few weeks, but I don't think Rajah is off the hook just yet.

As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause because a mistrial ends a trial prematurely without a judgment of guilty or not as decided by the U.S. Supreme Court in United States v. Josef Perez. Cases dismissed because of insufficient evidence may constitute a final judgment for these purposes though many state and federal laws allow for substantially limited prosecutorial appeals from these orders. Also, a retrial after a conviction has been set aside following the grant of a motion for new trial, has been reversed on appeal, or has been vacated in a collateral proceeding (such as habeas corpus), does not violate double jeopardy because the judgment in the first trial has been invalidated. In all of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials such as to impeach contradictory testimony given at any subsequent proceeding.

You've got this wrong.

Found it - US v. Scott; 437 U. S. 82

http://supreme.justia.com/us/437/82/


The facts can be distinguished, but the rule of law therein really can't.

In the event the defendant seeks to have the proceedings terminated without a determination as to his ultimate guilt or innocence, he can be re-tried.

Yeah - I don't.

But we'll see soon enough.

Oh, even better language from the same case:

You were saying?

First try being right, then you can go ahead and be a condescending shithead.

Yeah, you do. And your cite isn't on point. The Scott case centered around pretrial issues.

As for being a condescending shithead, you've been doing that on multiple legal threads lately, when you don't seem to know what the hell you're talking about.

I'll see you in 3 weeks.

I doubt it. You'll be skipping the thread at that point. You've ignored the difference between common law and Constitutional law, and the impact it generally has in cases like this. The prosecution no longer has an automatic right to reprosecute.


Edit: to be fair, I think our area of disagreement is less than it seems. I was focusing on this part of your claim:

That's not true. It's dependent upon other factors.

We both seem to be in agreement that not all calls for mistrials result in the end of a case.

I've not ignored anything.

If the judge applies the DJ clause, it will be because he will have determined that the pre-trial publicity generated by the dismissal and the inadmissible evidence will make it impossible to for Clemens to get a fair jury pool and therefore he will be materially prejudiced.

That's why there's a hearing on it at all. If it were as clear-cut as you're arguing, it would simply be ruled on as a matter of law and they'd be done. No argument would be necessary at that point. There's a hearing because Hardin's going to try to establish that Clemens has been materially damaged by the mistrial and the publicity generated by it.

Absent material prejudice to the defendant, a motion from defendant to create a mistrial does not act as an automatic bar on a re-prosecution.

What we seem to have here is two people misunderstanding one another.
I didn't say that it was clear cut that there'd be no reprosecution. What I wrote was

Well, at least column agrees with me: it's likely that Roger will be tried again. As I said from the beginning, it's possible he might not, but certainly not probable

http://www.grantland.com/story/_/id/...-just-happened

Well, here's a different take:

http://tv.ibtimes.com/judge-declares...case/1271.html

And it was reportedly the judge, not defense counsel, that got the ball rolling on this.

http://news.cincinnati.com/article/2...yssey=nav|head

As I said earlier, this case will either be over, or Clemens will have an obvious appeal.