South Carolina Criminal Lawyer Blog

A mistrial means that a trial has been terminated before a verdict because of some error in the proceedings or a jury cannot agree on a verdict. There are several reasons a judge can call a mistrial which are:

1. Lack of jurisdiciton over the case;
2. Evidence has been admitted improperly; or
3. There was misconduct by a party to the case, a juror, or an outside source that has prevented due process.

Due process means that the government must respect all of the legal rights that are owed to a person according to the law.

In a criminal case, if a mistrial is mistakenly called by the court, or if prosecutorial misconduct forced the defendant into moving for a mistrial, the constitutional protection against double jeopardy bars any retrial. Double jeopardy is the constitutional right that a person cannot be subjected to a second trial or punishment for the same offense twice.

Roger Clemens was on trial for allegedly lying to Congress in his 2008 testimony about using performance enhancing drugs. On just day 2 of the perjury trial the judge declared a mistrial due to the prosecutors presenting inadmissable evidence to the jury. One of the main pieces of evidence against Clemens is the testimony of former teammate Andy Pettite. Pettite says that Clemens admitted to him that he has in fact used performance enhancing drugs. Clemens says that Pettite misheard him, but Pettite claims that he told his wife about the conversation on the same date that it took place. Before the commencement of the trial, Judge Walton ruled that Laura Pettite, Andy Pettite's wife, could not be called as a witness since she would only be testifying to hearsay. She had never spoken with Clemens directly regarding using performance enhancing drugs. The prosecution then proceeded to play a tape for the jury referring to Pettite's conversation with his wife which is exactly the conversation the judge said could not be brought into the trial.

After the prosecution blatantly ignored Judge Walton's orders, Clemens federal defense attorney requested a mistrial. Judge Walton declared the mistrial. Judge Walton stated to the prosecutor, "I think a first year law student would know that you can't bolster the credibility of one witness with clearly inadmissible evidence." Judge Walton has scheduled a hearing on September 2 to decide whether the case can be retried. Prosecutors have until July 29 to file the motion for the hearing.

Even if the government decides not to retry the case, Clemens reputation has already been permanently tarnished. He wasn't on trial for whether or not he used performance enhancing drugs but whether he lied about using them. The prosecutions enormous legal blunder has left it to the public to decide whether he has or has not used steroids and whether he was lying in his testimony in 2008.

This is the second mistrial involving a former star athlete accused in baseball's steroids scandal. Barry Bonds was convicted three months ago of obstruction of justice, but a mistrial was declared on three more serious false statements charges after jurors could not agree on a verdict.

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