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Legal experts ponder Clemens ruling impact

Former Major League Baseball pitcher Roger Clemens, right,

Former Major League Baseball pitcher Roger Clemens, right, leaves the U.S. District Court after the judge declared a mistrial. (July 14, 2011) Photo Credit: Getty Images

Local legal experts differed on how the video shown at the Roger Clemens perjury trial Thursday would impact the case's future.

Some thought a new trial remained possible, while others predicted the government's case was in jeopardy after a federal judge declared a mistrial Thursday because the video contained information that had been barred.

Fred Klein, a former Nassau County prosecutor who teaches law at Hofstra University, said showing the video was "inexcusable" and it is possible the judge will not allow a new trial.

If he were Clemens' lawyer, Klein said, he "would make a motion precluding them from retrying the case based on double jeopardy."

The tape contained a reference to an affidavit from the wife of former Yankees player Andy Pettitte concerning Clemens' alleged use of performance-enhancing drugs.

Jim Cohen, a Fordham University criminal law professor, said showing the video was "rank hearsay of the worst order."

Cohen said the mistrial is "a black eye" for the prosecutors and that they could now be so "bruised" that they might offer Clemens a plea deal instead of seeking a new trial.

Greg Madey, a defense attorney who has also worked as a Nassau County assistant district attorney, said that if prosecutors made a mistake and did not mean to show material that had been barred, it was still "beyond sloppy."

Still, a new trial might be possible, Madey said.

"I don't think it's fatal," Madey said. "I think it's embarrassing."

Garden City attorney Bruce Barket said it appeared to him that the prosecutors made an error and did not deliberately defy the judge.

"A prosecutor is not going to deliberately do something like that, that he would know would lead to a quick and certain mistrial," Barket said.

But Barket said if it could be proved prosecutors ignored the judge's orders, "they could be sanctioned and prohibited from retrying him."


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