Much has been written in the last few days about whether the government will be precluded on double jeopardy grounds from retrying Roger Clemens. (see here, here, here, here, and here) I think the answer is relatively clear; the government will be able to try Clemens again. (Whether they should is another matter.)

The issue is to me controlled by Oregon v. Kennedy, 456 US 667 (1982), a case that makes it almost impossible for a defendant to successfully claim double jeopardy after he is granted a mistrial on his lawyer’s motion based on prosecutorial misconduct. Double jeopardy, according to the case, does not apply unless the prosecutor’s "conduct…is intended to provoke the defendant in moving for a mistrial." This narrow exception is designed to prevent a prosecutor who feels his case is going down the drain to goad defense counsel into a mistrial in the hope that the prosecution will fare better in a new trial. See, US v GAF Corp., 884 F26 670 (2d Cir 1989). Although I think Kennedy is bad law since it precludes any sanction against the government where the exception does not apply, it is the prevailing law. .

Under the Kennedy standard, Judge Walton, in order to grant a mistrial, must find not only that the behavior of the prosecutors was intentional, but that their intent was to goad the defense into seeking a mistrial. Arguably, the cumulation of what the judge found to be the egregious nature of the error by veteran prosecutors, the compounding of the error by leaving the excluded testimony on a screen in front of the jury during a conference with counsel, and the apparent prior disregard by the government in its opening of another ruling not to discuss drug use by other ballplayers might suggest that the error that led to a mistrial was intentional. On the hand, the declarations of the prosecutor (which ranged from justification to moderate mea culpa), the judge’s own statement about the lack of specificity of his order (apparently not directly ordering redaction of the videotape), the failure of the defense to object either before or during the playing of the videotape, the defense attorney’s positive comments about the prosecutors, and the prosecutors’ good reputation sway me to believe that their error, although unjustifiable in a case of this magnitude (at the least, they should sought judicial guidance if they felt they could rightly put in Rep. Cummings’ entire "question"), was just sloppy. In my personal determination that it was not intentional I also consider that these local and experienced prosecutors would not deliberately cross Judge Walton, who is not known to be tolerant of attorney excesses.

In any case, even if the judge were to find that the conduct of the prosecutors was intentional, it is a huge jump for him to find that their intention was not just to gain a tactical advantage, but to provoke a retrial in order to get a do-over. In view of the apparent government satisfaction with the jury, the very early stage of the trial, the absence of any obvious advantage a retrial would give the government, the defense’s hesitancy in asking for a retrial, and the government’s objection to it, I see no basis for a determination that the goal of the prosecutors was declaration of a mistrial.

(Goldman)