Roger Clemens' Prosecutors Arrogantly Thought They Could Violate the Law

Roger Clemens' prosecutors made a colossal blunder when the showed the jury a tape that U.S. District Court Judge Reggie Walton instructed them they could not use. The jury observed “evidence” they were not allowed to see.

The position here is that the prosecutors thought they could show the jury the tape, have the judge instruct the jury to ignore what they had seen and continue the trial with a tainted jury.

Prosecutors believe that they can violate the law. They don’t care about the truth.

One can point out many negative characteristics that describe the government’s prosecutors, but one thing they do get credit for is not being dummies.

This time, they underestimated Judge Walton.

The prosecution always has a great advantage over the defense. They can lie with impunity but if anyone has the temerity to lie to them, they can and usually will prosecute the liar.

In 2011, the American justice system has devolved into one in which the accused must prove his or her innocence, which is something that most Americans think is right. No longer does the burden fall on the prosecutors proving guilt. No, the accused must prove innocence.

The video clip that forced a mistrial, and most likely the end of the persecution of Roger Clemens, showed Rep. Elijah Cummings during Clemens' appearance before Congress in 2008.

Cummings was reading an affidavit from Laura Pettitte, the wife of Clemens’ loyal friend Andy. Mrs. Pettitte stated that she recalled that Mr. Pettitte told her Clemens had admitted using steroids to him.

Judge Walton classified Mrs. Pettitte’s testimony on the tape hearsay because she related what Mr. Pettitte told her Mr. Clemens had told him.

Lester Munson, an attorney and ESPN correspondent, reported that after he declared a mistrial, Judge Walton stated, "Now we must address whether the defendant [Clemens] can be re-prosecuted."

The prosecutors’ problem is double jeopardy, which means that prosecutors have one chance to convict someone accused of a crime. If the accused individual is found not guilty, she cannot be tried for the same crime a second time.

Munson concluded that Judge Walton must determine if the prosecutors’ “error” was inadvertent, deliberate, or somewhere in between.

The judge was bristling before he declared the mistrial, stating "Government counsel [should] not do whatever they can get away with doing."

But that’s what prosecutors do.

Munson believes that this motive was a clear signal that prosecutors Steven Durham and Daniel Butler deliberately used the video.

The media painted a negative image of Clemens’ attorney Rusty Hardin for years before the trial, but Hardin did something that is not difficult to do. He proved that the media is usually wrong.

Hardin remained silent when Judge Walton held a conference with him and the prosecution.  Then, at exactly the right time, Hardin asked for a mistrial, which both he and the prosecutors realized was inevitable.

The key is that if Judge Walton concludes the prosecution’s “error" was intentional, Clemens would face double jeopardy if tried a second time.

Judge Walton is a credit to the judiciary. He followed the law when he declared a mistrial, and he will follow the law in his future rulings with respect to the case.

That’s more than one can say about the prosecutors.