In the world of "star justice," Roger Clemens’ trial for lying to Congress started out looking like "must see TV." It quickly fell apart and the court declared a mistrial based on the failure of the prosecutors to play by the rules. Only six days into the trial, and on only the second day of testimony, prosecutors apparently defied a court order and presented prejudicial hearsay testimony the judge had already barred from trial. The judge specifically found that the government’s conduct had placed the case in a posture where Clemens could not get a fair trial from the seated jury. But could he get a fair trial from another jury? Will the government get a second chance to convict the baseball superstar?

Clemens’ defense lawyers have filed a motion to dismiss the indictment, claiming that Roger cannot get a fair retrial based on the government’s conduct. The motion is 32 pages long and provides some great reading. Others have written about this in far greater detail than I can here, but the general principle to take away from the motion is this – you have a right to a fair trial in every criminal matter. A fair trial may include hard evidence, prejudicial witnesses and physical evidence that strikes a hard blow. Judges preside over criminal case to insure that the blows will be within the bounds of the law and that the parties will play by the rules. When prosecutors do not play by the rules, the court must step in and use its power to insure a fair trial. 

In the Clemens case, the prosecutors permitted hearsay statements made by Clemens’ ex-wife to be played to the jury despite a prior court ruling that prohibited them from doing so. The prosecution team had put together the video clips and transcript that were shown the jury – so even if they did not intend to violate the court’s order, they had a duty to insure that the order was complied with. In other words, after spending millions of taxpayer dollars to prepare for trial, somebody should have reviewed that video and transcript to make certain they did not violate the judge’s order.

After all – this million dollar fiasco is all about personal accountability, isn’t it? 

So now we await the government’s response to the motion. We will follow-up on this as it develops.