Sarah's Proposed Prosecutor Rule: One strike, you're out!

I'm confident that all of my dear, loyal readers are just dying to know what I think of today's events in the Roger Clemens case. (It doesn't cost any of you to let me believe it, anyway.) Just to make sure we all know what we're talking about, Roger Clemens is the All-Star pitcher, now retired, who is facing federal perjury charges. He was hauled before Congress back when they were investigating performance enhancing drugs. He is now accused of lying in that testimony.

I'm skipping over discussion of the worthiness of the charges or the use of performance enhancing drugs in baseball, so don't ask.

The trial began this week, with opening statements yesterday and some evidence presented today. In case you missed it, the judge declared a mistrial today. This came after the prosecution played in front of the jury a videotape that included references to something the judge had already ruled could not come in. The judge immediately halted the proceedings, called the parties up to the bench, and basically invited the defense to move for a mistrial. This was not the first no-no committed by the prosecution, either. In opening statements, the prosecution made reference to a different bit of information that the judge had also said was not admissible. So in the space of 24 hours, the prosecution blatantly disregarded two separate rulings by the court. The court granted the mistrial and preliminarily set a new trial date for September.

But there will be lots of litigation before then on the question that everyone was asking today. Does the prosecution get to try him again? The general answer is probably. The standards are not in the defense's favor. Double jeopardy does not automatically bar a new trial. But it isn't a completely clear point and the judge definitely has discretion to rule the prosecution cannot proceed. Where the prosecution goads the defense into moving for a mistrial, the court can find that a new trial could violate double jeopardy.

Thus we proceed to my rant. Because there is no question in my mind about what should happen here. The prosecution should absolutely be barred from further prosecution of these charges. They broke the rules. Twice. In a way that I have to believe was knowing and intentional. It's pretty darn hard to argue that the opening statement was an innocent mistake. And there is no excuse for them not to know what was on every frame of a video they were going to play for the jury. So if the prosecution refuses to play by the rules, why on earth should they get another chance to play the game?

Prosecutorial misconduct runs rampant in this country. A January issue of the New Yorker included a long article about it. USA Today did an in-depth investigation on it last year. Misconduct among the ranks of federal prosecutors goes on and on. So why don't courts do something about it? Why don't courts take it seriously and put a stop to it? They could. But they would have to actually dismiss some cases. You know, hold prosecutor's accountable for their actions and make them suffer real consequences. So why not start on this case, involving someone who didn't hurt anyone or steal any money. Because I am sick to death of seeing prosecutors intentionally violate the rules and then still be afforded the chance to win. These are people's lives, their money (for paying lawyers), and their liberty that they're screwing with.

Just once, I want to see a court say no. Tell a prosecutor we're not going to let you deny this defendant his fair and speedy trial by making him wait another month or two or however long before he gets resolution. We're not going to let you make him rack up tens of thousands more in legal fees. We're not going to let you put him through more months of worrying and wondering whether there is prison time in his future. Facing a criminal charge is hard and scary and emotionally draining. It's a big deal, for most people the biggest deal they will ever face. And you don't get to play games with their lives.

So, come on court. Declare this mistrial to be with prejudice. Don't let the prosecution get a second kick at this cat. Quite frankly, they don't deserve it. And we deserve to have a system that doesn't turn a blind eye to misconduct.