Best efforts of the defense aside, U.S. District Judge Reggie B. Walton has  refused to dismiss the case against Roger Clemens. Not because the prosecutions use of prohibited evidence before the jury was okay with him.  Not because it was an accident. Indeed,

Earlier in the hearing, Walton had castigated government lawyers, saying he had “a hard time reaching any other conclusion” than prosecutors had intentionally disobeyed one of his orders when they introduced the barred evidence.

It doesn’t get much worse for the prosecution.  Or perhaps better stated, it doesn’t really matter, aside from having to endure a few harsh words.

“While I am very troubled by what occurred and it was something that should not have taken place,” Walton said, “I just think that the current state of the law would not justify me concluding on the record we have in this case that the double jeopardy clause bars reprosecution.”

Clearly, the law wasn’t going to  make it easy for Walton to rule for Clemens, with the rule requiring that the prosecution’s conduct intending to goad the defense into moving for a mistrial.  But Walton’s justification for denying double jeopardy is particularly troubling :

Walton said his review of case law found no defendant who has been able to meet that requirement.

Well yeah, it’s a hard bar to meet.  Very hard. Too hard, most would agree. And yet, the fact that no defendant has satisfied the requirement creates the very problem Walton faced.  Unless one judge has the fortitude to rule in favor of the defense, there will never be a case where the defendant meets the requirement.  Reggie Walton could have been that judge.  Reggie Walton blinked. Ducked and covered. The prosecution did its worst and the judge caved.

There is a question of whether the intent to goard the defense into moving for a mistrial under Oregon v. Kennedy, 456 US 667 (1982) means that the court had to find it to be their sole, exclusive purpose, in that they actively desired a mistrial, or whether it means that the prosecution’s intention was to introduce precluded evidence to the jury, knowing full well that the options to the defense and the court were limited to an instruction to disregard the evidence or a mistrial.

Instructions to disregard evidence are a legal fiction.  The bell once rung cannot be unrung. The jury heard and saw the evidence, and there’s no way to get it out of their heads.  Both sides know this, and the prosecution, when it intentionally used prohibited evidence, placed the court and defense in an impossible situation.  A limiting instruction was a joke, but the only other option was a mistrial, forcing the defendant to give up his sworn jury and his trial as it transpired to that point. 

Did the prosecution desire a mistrial per se?  Perhaps not, but it certainly understood that it forced the option by using bared evidence.  When it comes to proof of intent, the law presumes a person to intend the natural consequences of his acts.  This applies to the prosecutor as well as anyone else, and the natural consequences of his conduct was to leave the defense with the choice of a worthless instruction or a mistrial.  This is no choice at all.

One of the great joys of being a federal judge is that you get to be one for as long as you like, provided you don’t do anything particularly nasty (in the illegal sense of the word).  They can’t take your robe away for having guts, or even making a wrong decision.  They certainly can’t take you off the bench because you’ve decided to be the first judge to rule in favor of a defendant since the Supremes issued a ruling that raised the bar for dismissal above the heads of most defendants.

This was the case.  This was the one time, the first time, maybe the only time, that the bar of Oregon v. Kennedy could have been met.  Maybe not a perfect fit, and maybe subject to some dispute, but similarly not so much of a stretch that it could not have been fully justifiable.  Reggie Walton could have done it. Reggie Walton chose not to do it.

And so the prosecution, intentionally showing prohibited evidence to the jury, gets a stern tongue-lashing for it’s intentional violation of a court order, and a second try.  Never do it again?  Or what, Judge?  What are you going to do about it next time?  Give them a double stern warning?

As judges love to say, high profile cases give them a bully pulpit to teach the country a lesson about right and wrong, good and evil.  The lesson here is that the government can ignore the ruling of a court, intentionally violate it in the process of impugning a defendant, and they will suffer nothing, not a thing, for their conduct.  Great message, Judge Walton.

Whether there will be another case that presents a viable scenario to meet the absurdly high bar of Oregon v. Kennedy is hard to say, but this case had the meat to do so and Judge Walton passed because no one had ever done it before.  Judge Walton will be remember as the judge who was too afraid to be the first.