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Prosecutorial rule violations lead to Roger Clemens’s mistrial and death row inmate’s conviction reversal

Jul 15, 2011 Prosecutorial rule violations lead to Roger Clemens’s mistrial and death row inmate’s conviction reversal

Were I a sports fan — which I am not — I might be thinking of all sorts of sports analogies to the spectacular nearly back-to-back bittersweet huge court victories this week for baseball’s Roger Clemens and Virginia death row inmate Justin Michael Wolfe based on prosecutorial rule violations, occurring on opposite sides of the Potomac River.

As a criminal defense lawyer, I ask: For each instance of prosecutorial rule violations that are uncovered and properly remedied, how many such violations never see the light of day and do not get properly remedied?

Clemens obtained a mistrial the same week his federal steroids-related jury trial started (see the indictment), due to the prosecution’s presenting videotaped footage about testimony of Laura Pettitte that was previously ruled as inadmissible hearsay by trial Judge Reggie Walton. Although Judge Walton pointed out that the defense did not immediately object to this rule violation, he still ordered a mistrial, finding no other sufficient remedy to enable a fair trial, where Ms. Pettitte’s inadmissible-but-presented testimony bolstered the credibility of key prosecution witness Andy Pettitte.

Not only did Judge Walton grant Mr. Clemens’s mistrial motion, but he then invited the parties to file arguments about whether Fifth Amendment double jeopardy principles prevent a retrial, apparently with the judge to include consideration of the prosecution team’s intent in presenting the jury with Ms. Pettitte’s testimony after being told by the judge not to do so.

If only judges would grant mistrials more often for actions by prosecutors, prosecution witnesses, and judges that overly prejudice criminal defendants. More often, however, trial judges deny such relief, and instead grant no relief, or give the jury a curative instruction, which often is a double-edged sword that merely highlights the prejudicial event all the more to the jury.

This week’s victories for Mr. Clemens and Justine Wolfe are bittersweet. Mr. Clemens has likely paid huge sums to his lawyers from Houston’s Rusty Hardin law firm, which, from reviewing the docket, has likely devoted hundreds of hours defending him. Mr. Wolfe waited on death row for nine years to have his conviction reversed this week.

On September 2, 2011, Judge Walton will hear arguments about whether the Double Jeopardy rule bars a retrial of Mr. Clemens.

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