After playing a video that included testimony by Laura Pettitte, precluded unless the defense opened the door, Judge Walton declared a mistrial.

U.S. District Judge Reggie Walton said prosecutors should have modified a video that showed a congressman talking about a deposition from the wife of Clemens’ old teammate, former New York Yankees pitcher Andy Pettitte, during a 2008 hearing. Walton had decided earlier that prosecutors couldn’t include references to Laura Pettitte’s testimony unless it was brought up on rebuttal.

“I can’t in good faith leave this case in a situation where a man’s liberty is at risk when the government should have taken steps to ensure that we were not in this situation,” Walton said after Clemens’ lawyers asked for a mistrial. “I don’t see how I can unring the bell.”

Now what?  It seems inconceivable in a trial with this level of public attention that the government’s failure to adhere to the court’s ruling was accidental.  But according to Oregon v. Kennedy, 456 US 667 (1982), retrial isn’t precluded unless the mistrial was “intentionally provoked.”

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s 676 *676 motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant’s motion for a mistrial constitutes “a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” United States v. Scott, 437 U. S. 82, 93 (1978). Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” United States v. Dinitz, supra, at 609. Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

Intent, however, is determined in the usual way:

By contrast, a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.

Few cases command the degree of attention that this case did, given the high profile of the defendant and its interest and impact on the cultural institution of baseball, the great American pastime.  This counts for something, and no doubt weighed heavily on the prosecution.

To conclude that the government did not intent to goad the defense into moving for a mistrial, and thus waiving the defendant’s double jeopardy protections, one would have to believe that the prosecution was so mind-bogglingly incompetent, so wholly incapable of performing their function with the barest minimum competence, as to not be aware that a video it presented to the jury contained the very testimony it had been admonished not to show. 

Could AUSA Steve Durham really be that much of a dolt in a case of this magnitude?

Well, sure, it’s possible, but to not infer that the government knew what it was doing when it played the video with the forbidden content is to presume that Durham is dumber than dirt.  No, that’s not a legitimate inference.  In fact, all evidence points to the contrary, that this was a knowing and intentional move, with the idea that it might either sneak through or get some tepid and worthless limiting instruction, which the jury would naturally ignore as all juries do once the bell has been rung.  What’s the worst that could happen from this deliberate conduct?  A mistrial?

Exactly.  A mistrial.  Not so much that the government’s specific intent was to goad the defense into a mistrial, but that causing a mistrial by its intentional conduct was the worst that could happen, the downside.  And the government was prepared, when it decided to engage in impropriety, to suck the defense into moving for a mistrial as its worst case scenario.

The only reasonable inference that can be drawn from the government’s conduct was that it knew that it was violating Judge Walton’s order, presenting testimony to the jury that it had been precluded from doing, and offering up the option of living with the prejudice or causing a mistrial to follow.  Either way, it was a chance the government took.  Neither way can it be inferred that they’re just a bunch of dopey government lawyers who had a brain fart.  \

This was no accident.  The government didn’t screw up.  Double jeopardy precludes retrial.  And if you’re angry at Roger the Rocket for getting away with it, don’t blame him, the judge or the system.  The government did this, and it did it intentionally.

Update:   The AP has gotten on top of the double jeopardy aspect of the story:

“Generally speaking, mistrial does not bar a trial of the defendant when the defendant requested the mistrial,” said Harry Sandick, a former prosecutor who now defends white-collar cases. He said a judge may make an exception for misconduct on the part of prosecutors, but this appears to have been a simple yet devastating mistake.

“How could the government not have reviewed each piece of evidence after the court’s pretrial rulings?” he said. “This is crucially important, and prosecutors have to do this all the time.”

Well, kinda. Okay, not really.  After all, Harry Sandick is a former prosecutor, so it’s not like he has to actually know what he’s talking about before shooting from the hip to the AP.