Today is “can they put Roger Clemens back on trial?” day


For those of you following, Roger Clemens and all of the lawyers will be back in court today to argue over whether the government should be allowed to try him again. Or if, rather, the government will be held to have lost it’s chance to do so because they intentionally sought a mistrial because their case was going sideways.

Clemens’ argument that it was intentional will be a hard sell.  As I see it, there are three potential reasons whey the government put on evidence that they weren’t supposed to:

1. They’re rank incompetents, unable to edit a video tape and/or comprehend a court order;

2. They tried to intentionally derail the case; or

3. They’re federal prosecutors who are routinely given the benefit of the doubt and who are routinely allowed to get away with questionable crap like this, intentional or otherwise, because the criminal defendants they usually go after are poor and poorly-represented and, as a result, the prosecutors have just sort of come to expect that when they do stuff like this they’ll be able to talk their way out of it with a scolding, and oftentimes they never even get the scolding.

I’ve worked with federal prosecutors. I’ve yet to meet a truly incompetent one. They’re usually pretty good as far as actually knowing how to do their job.  And, as many have noted, the trial had just gotten underway so it’s hard to argue that the prosecutors truly thought the case was in terrible shape, scuttling number 2.

But even if I personally believe number 3, I imagine it will be called an “inadvertent error” by the judge and Clemens will be tried again.