Right after the mistrial in the Roger Clemens case, there were some folks suggesting that the judge may rule that, because the mistrial was the result of the prosecution’s actions, double jeopardy would prevent a retrial. I was kind of skeptical of that, but I didn’t read any of the case law or anything because, let’s face it, not liking doing that is why I’m doing this now.
But there are some people who actually like the legal expert gig, and they believe that double jeopardy doesn’t apply either, and that the next thing that happens will be the setting of a new trial date. The reason: this wasn’t an instance where the prosecution was trying to screw around on purpose:
“It is one thing when something like this happens three weeks into a month-long trial where the defense has poked big holes in the government’s case and effectively crossed main witnesses,” said Andrew Wise, an attorney with the Washington firm Miller & Chevalier who specializes in white-collar criminal trials. “But when you are on day two of a month-long trial, it is harder to argue that the government was throwing in the towel and goading the defense into seeking a mistrial so they could have a fresh start.”
There are dissenting voices to this — notably, Alan Dershowitz, who knows a bit about getting famous people out of trouble — but more folks think that it’s not over yet. For what it’s worth, I think Dershowitz has a point about how prosecutors often try to slide stuff by they’re not supposed to because they usually get away with it, but I doubt this case will be the time when the judge makes an example out of them for doing so.