What Lies Ahead for Roger Clemens?

Posted by joseph bahgat on July 18, 2011

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No pun intended. Seriously. After U.S. District Judge Reggie Walton declared a mistrial in the government's perjury case against Roger Clemens last week, the 300-win hard-throwing right-hander's future is somewhat in limbo. That is because a mistrial is not an acquittal. An acquittal is when a jury unanimously finds that the prosecution failed to prove the defendant's guilt beyond a reasonable doubt, which results in a not guilty verdict. N.B. that doesn't mean innocent; many a defendant is found not guilty, but they are far from innocent (ah em, O.J., or better yet, Casey Anthony).

Mistrials usually happen because of something related to some undue influence or irregularity with regard to the jury, and basically, a mistrial means that the trial never happened. A common reason for a mistrial is a deadlocked jury, as we saw in the case against Barry Bonds. The reason for the mistrial in Clemens' case was prosecutorial misconduct—the prosecutors violated one of Judge Walton's pretrial evidentiary rulings, when Assistant U.S. Attorneys Dan Butler and Steven Durham showed the jury video footage of Clemens' Capitol Hill testimony in which Rep. Elijah Cummings (D.-Md.) made references to Laura Pettitte (Andy's wife). (See Sports in the Courts Blog's Chris Fusco recap what happened, on MLB network.) Sure, it's a technicality, but it's legit—when a judge tells an attorney not to do something, you'd better not do it (think Jack Nicholson in A Few Good Men "We follow orders, or people die.").

So what now? Roger Clemens is still under indictment (i.e., charges are still pending), and Judge Walton has scheduled a hearing to decide whether the U.S. Attorney will be allowed to present the case to a new jury. ESPN's Lester Munson makes much ado about whether the judge will allow the U.S. Attorney to retry Clemens, but I wonder if that's just bunk to sell advertising on ESPN.com.

As Munson admitted, mistrials in federal court are rare. Judges don't like to give them. It's almost like judges see a mistrial as though it reflects poorly on their own legal knowledge or judicial temperment. That is exactly the reason I'd be shocked if the judge ruled that the case against Clemens is dead. That kind of ruling takes a lot more than peculiar circumstances (not to mention, a lot of chutzpah), because when a judge makes that kind of ruling he is taking the case out of the jury's hands. Trial by jury being one of the most sacred institutions in our legal system, if not our whole society. Even if the judge barred Clemens' retrial, the prosecution would have a right to appeal that decision, and it would likely be reversed.

Bottom line, the judge will allow prosecutors to retry Clemens, but whether they will is anyone's guess. Although what happens to Roger Clemens doesn't make much difference to me, I wish this whole thing would go away. A case of this magnitude is no inexpensive affair—from investigation all the way to trial—and the U.S. Attorney is financing its witch hunt at taxpayers' expense, and for what? Because some retired ballplayer may have lied about using steroids? Who cares? Hypothetically speaking, let's assume that Clemens is guilty. Then who is the victim? Congress? Baseball fans? Even if Clemens is guilty, his was a victimless crime. Leave it alone.

SCOTUS to Decide Constitutionality of FCC's Indecency Policy

Posted by joseph bahgat on July 03, 2011

At the 2003 Golden Globes, U2 front-man Bono accepted the award for Best Original Song in a Motion Picture (Martin Scorcese's Gangs of New York), and when Bono took the microphone he was apparently speechless, because all he could say was: "This is really, really...fucking brilliant!" (footage of the live broadcast available here). Probably not a big deal, but for the fact that the awards show was broadcast live on NBC networks across the nation.

At first, the incident wasn't a big deal. The FCC received a few complaints, but mostly from a single special interest group. The Commission issued a no-liability opinion, based on the fact that Bono's use of the word fucking was non-sexual. That is, Bono used fucking as an adjective, not as a verb. The verb form of fucking obviously describes a sexual act, which is explicitly prohibited under FCC broadcast regulations.

Despite the FCC's decision that Bono's so-called fleeting expletive was just that, more than a year after the incident, the Commission reversed course and issued a new opinion that any use of the word fuck is per se sexual. But after ABC broadcast an uncensored version of Saving Private Ryan in November 2004— which used the word fuck repeatedly over the course of several hours—the Commission said that there was no problem because the soldiers' use of fuck in the film did not "pander, titillate, or reflect shock value." The Commission instead found that the soldiers' language was reasonable in the context of being at war, and amidst unspeakable conditions and peril.

Not surprisingly, in 2007, the U.S. Court of Appeals for the Second Circuit found the FCC's indecency policy arbitrary and capricious (see the oral argument here). But the FCC took the case to the U.S. Supreme Court, which reversed the Second Circuit's ruling. In 2010, the Second Circuit heard the case again, and this time decided that the FCC's policy was unconstitutional, on the grounds of vagueness. Now the case is headed back to the Supreme Court. Justice Sonia Sotomayor has recused herself from hearing the case, because she was a sitting judge in the Second Circuit when the case was there.

It's difficult to predict how this case will come out, but given my familiarity with the subject matter, and the specific facts, my guess is that, as strict constructionists, Justices Scalia and Thomas will vote to affirm. Justice Alito and the Chief Justice will almost certainly go the other way, because I just can't imagine either of them taking a position that made it permissible for someone to use the word fuck.

The case is Federal Communications Commission v. Fox Television Stations, Inc., et al., No. 10-1293. Because of all the appeals and remands, the case history almost resembles a spider web:

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