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University of Iowa law professor Jim Tomkovicz said that a second trial generally is forbidden by the Fifth Amendment when a mistrial is neither requested nor consented to by the defense. But he said that when a mistrial is requested by or consented to by the accused, the general rule is that the guarantee against double jeopardy does not prevent another trial -- with one "very, very tiny exception."
"According to the Supreme Court, for double jeopardy to bar the second trial it must be proven, and the judge must find, that the prosecution did whatever it did with the intent to provoke a mistrial request by the defense," Tomkovicz said. "In that case, and only in that case, the law views the situation as if the government deprived the defendant of the right to this particular jury and the right to suffer the ordeal of trial only once. No other improper prosecutorial intent or bad faith will bar retrial following a defense-requested mistrial."
Tomkovicz said that from the record in the transcripts, it appears that Clemens faces an uphill battle in trying to show that the prosecutors acted with the intent required to trigger double-jeopardy protection and he's surprised Walton has raised the possibility of it.
At one point, Walton may have been suggesting the prosecutors were purposefully trying to get Laura Pettitte's statement to the jury despite his order.
"Government counsel doesn't do just what government counsel can get away with doing," Walton scolded. "And I think a first-year law student would know that you can't bolster the credibility of one witness or a witness with clearly inadmissible statements."
But more often Walton seemed to indicate that he thought the mention of Laura Pettitte's statement could have been an error resulting from prosecutors not being careful enough to make sure their exhibits were in line with his ruling, made just the day before trial started. He said the prosecutors "should have been more cautious" and "taken steps to ensure that we were not in this situation."
"It was the government's obligation, once I made my ruling, to go back, look at its evidence and make sure that the information that it would be presenting to this jury did not violate a clear ruling that this court had made," Walton said.
Later, he told jurors he was dismissing them because "the government did not take the effort that it should have taken to alter its evidence to comply with the ruling that I made."
Wise, the white-collar defense attorney, recently represented a defendant in the Jack Abramoff lobbying scandal in the same federal courthouse through a mistrial because of a hung jury and a second prosecution. He said the transcript suggests the judge didn't see a deliberate attempt for a mistrial.
"The judge's comments suggest frustration with what he saw as sloppy mistakes by experienced prosecutors, but not purposeful efforts to evade the court's rulings," Wise said. "My guess is that if Judge Walton thought the government was intentionally trying to pull one over on the court, you would have heard even more pointed comments."
Amid the debate in the legal community, one prominent lawyer isn't willing to voice an opinion about what Walton ultimately will decide. "I wouldn't even hazard a guess," Hardin said as he left the courthouse after the mistrial with his client Clemens by his side.
Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
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