Rocket pleads not guilty

[redfan]

http://m.espn.go.com/mlb/story?storyId=5512659&top

Maybe he didn't use PEDs.

[Just Passin' By]

Originally Posted by DJ's left nut

I won't say likely. I won't even go with probable.

'Possible', certainly. But the prosecution never even truly began it's case-in-chief, let alone wrapped it up. And as this case was clearly not decided based on the merits, I'm not sure how a court would determine there was any double jeopardy here.

The obvious issue is the fact that a jury was selected and there could be prejudice to the defendant by now subjecting him to a 2nd jury. But with the court having no earthly idea how jury 1 would have ruled (afterall, maybe this save's Rocket's ass), I think they would be reluctant to engage in that much speculation and call it a double-jeopardy matter.

Now this is bad prosecuting. That's probably the singled dumbest thing I've ever even heard of an attorney doing. It's just staggering that a US Attorney could've been that careless.

Somebody should lose their job over it, for sure.

Jeopardy is attached once the jury is sworn in.

[4th and Long]

Originally Posted by Just Passin' By

The judge hasn't yet ruled on it. However, it's likely that he'll rule that Roger cannot be tried again on the same charges. Clemens will either be free of this after the Sept. 2 hearing, or he'll have an obvious issue on appeal.

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.

[DJ's left nut]

Originally Posted by Just Passin' By

Jeopardy is attached once the jury is sworn in.

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.

[4th and Long]

Originally Posted by Just Passin' By

Jeopardy is attached once the jury is sworn in.

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.

[Just Passin' By]

Originally Posted by DJ's left nut

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.

You've got this wrong.

[DJ's left nut]

Originally Posted by DJ's left nut

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.

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

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

In a situation such as the instant one, where a defendant chooses to avoid conviction not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government's case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt, the defendant, by deliberately choosing to seek termination of the trial, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a trial court ruling favoring the defendant. The Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant of the consequences of his voluntary choice.

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.

[DJ's left nut]

Originally Posted by Just Passin' By

You've got this wrong.

Yeah - I don't.

But we'll see soon enough.

[DJ's left nut]

Oh, even better language from the same case:

Where, on the other hand, a defendant successfully seeks to avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy Clause is not offended by a second prosecution. “[A] motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by a prosecutorial or judicial error.”

You were saying?

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

[Just Passin' By]

Originally Posted by DJ's left nut

Yeah - I don't.

But we'll see soon enough.

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.

[DJ's left nut]

Originally Posted by Just Passin' By

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

I'll see you in 3 weeks.

[Just Passin' By]

Originally Posted by DJ's left nut

I'll see you in 6 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:

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

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.

[DJ's left nut]

Originally Posted by Just Passin' By

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.

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.

[Just Passin' By]

Originally Posted by DJ's left nut

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

The judge hasn't yet ruled on it. However, it's likely that he'll rule that Roger cannot be tried again on the same charges. Clemens will either be free of this after the Sept. 2 hearing, or he'll have an obvious issue on appeal.

[DJ's left nut]

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

3. Will Roger Clemens Stand Trial Again?

Now, it's the great question of 2005-07 again: is that all for Roger Clemens? Will Judge Walton decide that it's unfair to Clemens if he has to be retried?

It seems likely that the case can be tried again fairly quickly — the parties are ready and well-financed, the witnesses aren't hard to find. So the arguments will most likely center on whether this was a stunt the prosecution pulled on purpose and whether it gets some unfair advantage from starting over or from having heard the defense's opening arguments. Certainly Rusty Hardin, Clemens' lead lawyer, is likely to make much of the argument that the prosecutors knew full well they were introducing evidence the judge had told them not to use. Judges don't like being disobeyed. But he may have a harder case arguing that there's any real advantage gained by the prosecutors or that they actually wanted a mistrial. After all, the government has already wasted a ridiculous amount of money on this case when the Department of Justice has much bigger fish to fry (people lying on Capitol Hill is the ultimate dog-bites-man story, and usually on subjects that pretend to be more important than baseball), and it won't look good for these prosecutors if possibly the biggest case of their careers gets thrown out for good over this. And it's much harder, if not impossible, for a defendant to argue that the court shouldn't have called a mistrial when the defendant asked for one — as Hardin did here. So the likely outcome is another trial.

As for Clemens, he's learning the hard way that criminal cases, unlike baseball games, sometimes make you wait a long time to find out who won and who lost. But it would be the most ironic ending of all if Judge Walton decides that the prosecution tried to get an unfair advantage and has its case erased from the books.

[Just Passin' By]

Well, here's a different take:

Walton has scheduled a September 2nd hearing to discuss a possible retrial, but many are expecting him to drop all charges and bring an end to the saga based on the logic that a retrial would constitute double jeopardy, a procedural defense that forbids a defendant from being tried again on the same or similar charges pursuant to a legitimate acquittal or conviction.

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.

In the video prosecutors showed the jury, Rep. Elijah Cummings, D-Md., referred to Pettitte's conversation with his wife during the questioning of Clemens. Walton quickly cut off the tape and called attorneys to the bench for a private conversation for several minutes. The video remained frozen on the screen in front of jurors with a transcript of what was being said on the bottom.

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.