Nov 012011
 

The attorneys for Roger Clemens recently filed a motion seeking attorneys’ fees in conjunction with the mistrial in his first trial for perjury coming out of the baseball steroids scandal. In the initial trial, the government introduced evidence to the jury that was barred in a pre-trial hearing. Upon introduction of the evidence, the judge declared a mistrial. Although Clemens’ attorneys initially sought dismissal of the charge based upon the double jeopardy clause, he settled for the court opening the door for his defense counsel to seek attorneys’ fees for the duplicative work it had to perform.

The attorneys for Clemens state, “In this case, an award of fees and costs will at least partially restore Mr. Clemens to the same position he was in before the prosecutors engaged in conduct meriting a mistrial.” The reasoning behind the ruling stems from the fact that the Rocket has already paid once to defend himself for this conduct.  The Government, by trying him, but then causing a mistrial, is allegedly violating fundamental tenets of fairness. Theoretically subsequent mistrials could end up bearing significant expense to the defendant.

Defense counsel also points to the analogous case of Estate of Wallace v. City of Los Angeles 229 F.R.D 163 (C.D. Cal. 2005). They cite in their brief, “In that case, the representatives of the estate of rapper Christopher Wallace, a.k.a. ‘Biggie Smalls’ or ‘The Notorious B.I.G.,’ brought suit against the City of Los Angeles and the Chief and officers in the Los Angeles Police Department for alleged involvement in Mr. Wallace’s murder. Several days into trial, an individual affiliated with the Police Department informed the plaintiffs that the government parties may have withheld critical information to the case. Plaintiffs moved for entry of default against defendants, or, in the alternative, a mistrial and an award of attorneys’ fees as a sanction for the defendants’ actions. After invoking the ‘inherent power to sanction that abuses the judicial process,’ the Court granted the motion for mistrial and held that Plaintiffs were ‘entitled to an award of attorneys’ fees and costs as a sanction.’” Defense counsel argues that the same principle should also apply in this case.

Petition: http://legaltimes.typepad.com/files/clemens_fee_request.pdf