Last week U.S. District Judge Reggie Walton swiftly called a mistrial in the federal perjury trial of former baseball star Roger Clemens. Prosecutors were required to redact certain comments made by a congressman that would jeopardize the credibility of one witness. But the jury inadvertently saw the transcript while attorneys were in a private meeting. The trial lasted only two days so we wondered: What now?
We spoke with litigator Anne Bremner about what a mistrial means for Roger Clemens and his team of attorneys, including Rusty Hardin and Mike Attanasio. (We wrote about Attansio in this year’s San Diego Super Lawyers issue.) Bremner, a litigation shareholder with Seattle’s Stafford Frey Cooper, tries both civil and criminal cases, and is an analyst for broadcast and print media, including CNN Headline News and the FOX News Channel.
“You can’t, as a U.S. attorney-or any other lawyer, of course-come in, be told to redact certain documents and not do it, and show it to the jury,” Bremner explains. “And that’s what happened. And it was there, in front of God and everybody, in front of the jury. … And the judge, obviously, had some pretty harsh words and declared a mistrial immediately. Because, as he said, you can’t un-ring the bell with the whole proceedings tainted.
“But then the next question is: Does double jeopardy attach? If there’s a mistrial granted, generally, you’re going [to] see a new jury picked and the trial starts anew,” she says, adding that if a mistrial occurs it’s because a jury can’t reach a verdict, or, you know, something inadvertently occurs, through no fault of anybody in the case.”
But, she continues, “When you have a government action that has prejudiced the defendant and they have some culpability or there’s been some kind of willful conduct on their part, of recklessness, then you look at whether or not double jeopardy attaches. Rusty Hardin’s already come out and said that. … He said that he really liked the jury. And that’s part of it, too. He was satisfied that he had a jury that was favorable to his client.”
The government, Bremner says, will have to provide an explanation for their slip-up. But even if the government can prove their blunder was accidental, is it excusable?
“I’m still kind of putting through in my mind what could have been the circumstance that allowed this to occur,” Bremner says. “I’m just not sure what it could have been.”