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Monday, July 18, 2011

Clemens Hit by Pitch: Prosecutor gets Tossed

All Part of the Game

In baseball, there are a lot of things against the rules that players engage in all the time (Ironically, for a while there, I guess Steroid use was one of them). Pitchers try to doctor balls. Base-runners steal signs. Hitters obliterate the line at the back of the batter's box so that they can stand further behind home plate. Runners take out opposing fielders with hard slides, with no apparent effort to actually reach the base to which they were running. Pitchers throw at opposing batters, in retaliation for some real or imagined infraction against a teammate earlier in the game. All of these actions are technically against the rules, but typically are overlooked as "gamesmanship." Apologists remind us that ball players have been doing these things for over a century now. They're as ingrained in baseball as chewing tobacco and crotch-scratching.

In addition to being tolerated, many of these "transgressions" are celebrated as being evidence that a player is "hard-nosed," "old-school," or "playing the game right." I am always impressed by how accurately Jerry Remy can predict when a pitcher is going to hit a batter with a pitch. WIthout necessarily being able to articulate the unwritten rules of bean balls, Jerry nonetheless understands them intuitively. I am sure this comes from his decades in the game, first as a player, and then as an announcer for the Red Sox. Jerry has this uncanny ability to predict not only what kind of transgression will engender a retaliatory bean ball, but when it will come, against which player and even where on his body he's going to get hit

"That hard slide has Joe Maddon (the manager of the Tampa Bay Rays) pretty steamed. If this game gets out of hand, I wouldn't be surprised to see some reliever in the 8th inning knock down Youkilis or Pedroia. They won't go for his head or anything. Just a purpose pitch to let the Red Sox know the Rays don't appreciate what happened and they aren't going to forget it anytime soon." 

Sure enough, some scrub, who's just been called up from Triple-A, takes the mound in the 8th inning and plunks Pedroia right in the ass. And here's the weird part. Pedroia knows it's coming, too. And most of the time, that's OK. He calmly drops his bat, glares at the mound for a few seconds, and trots to first base. It's all part of the game.

Jury trials have their own rules

Litigation operates under its own set of rules. They are codified in the rules of civil procedure and very rarely does an experienced litigator do something impermissible in court without realizing he has broken the rules. That is, there are very few honest mistakes.

Just as in baseball, however, crafty trial attorneys understand the rules that aren't in the rules. One lawyer doesn't completely comply with all discovery requests the first time around. "Oh, Your Honor, I didn't realize counsel wanted those old emails, too. Gee, let me put my assistant right on it and we'll see if we can put our hands on them."

A witness will be slipped in at the last minute, despite numerous pre-trial conferences at which the lawyers are asked if the witness lists are complete. "We hadn't received Dr. Jones's report until last week, Your Honor, and we were fairly certain he wouldn't be available to testify."

Even though attorneys aren't supposed to argue the merits of the case during voir dire, a good trial lawyer will try to plant the seeds of her case by asking questions in a particular way. "Do you think it's possible that people make more typos when sending emails than when sending letters, so that an email might be less reliable as evidence?" A great question if the dollar amount included in an email will be used as evidence against your client; but, probably not completely kosher for voir dire.

Perhaps the place where this gamesmanship pops up most often is in the revelation of inadmissible evidence or testimony by a witness on the stand, prompted by a lawyer's question. Did the lawyer actually ask the question to elicit the verboten response? Did the witness know it was coming? Was the witness looking for an opportunity to "inadvertently" blurt out the information? Most of the time, it is pretty hard to tell.

Taking Control of the Game

When any of these transgressions occur, the judge has to figure out how to handle things. If the trial has started, the judge usually doesn't want to overreact. A mistrial is a royal pain in the ass for everyone involved. Sometimes, that is exactly what the offending party is looking for. So, the judge doesn't want to reward bad behavior. The first time something goes awry like this at trial, the judge will usually warn both sides to knock off the shenanigans. It's very much like a baseball umpire warning both benches.

If the offending behavior continues, the judge finds himself with the unenviable job of punishing one side or the other. Occasionally, a judge will make unavailable a particular line of inquiry that had previously been ruled in play. "That's it counselor. I've had just about enough. The inquiry about the secretary's salary is now off the table. Move to your next witness." This is akin to an umpire tossing a player from the game (or the manager). It limits a team's options and might reduce its chance of winning the game.

If the bad lawyer is recalcitrant and won't behave, the judge has the ability to impose sanctions that apply beyond the current case. Often, the matter will be taken up by the jurisdiction's board of bar discipline. Professional baseball players are subject to disciplinary actions by Major League Baseball, including fines and suspensions, the same sorts of punishments facing offending lawyers. Roger Clemens was suspended multiple times for intentionally throwing at hitters, and was famously fined $50,000 for "unintentionally" throwing a jagged piece of a shattered bat at Mike Piazza during the 2000 World Series.

The Last Resort: When to Call the Game

On occasion, the damage done to the trial process is considered so severe that a judge feels he has little choice but to declare a mistrial and dismiss the jury. A new trial date has to be set and a new panel of prospective jurors has to be convened. In a high profile case, this outcome is particularly problematic because one presumably wants to find new jurors who don't know much about what just happened in the first trial. 

The case law governing when to declare a mistrial is actually fairly sensible, if vague enough to allow a judge to ultimately do whatever she wants. At least, judges are directed to look at the right questions. For example, if a witness mentions something inadmissible during testimony, the judge is instructed to consider the following: (See Peyton v. US 709 A.2d 65).

  1. Was the inadmissible information uttered once or repeated? (Did the pitcher throw at the batter multiple times?)
  2. Was the statement inadvertent or solicited? (Did the manager tell the pitcher to hit the batter?)
  3. How important to the case is this witness's testimony? (Did the pitcher just plunk the other team's best hitter?)
  4. How significant is the inadmissible information and how will jurors interpret it? (How hard did you hit the guy, and can he stay in the game?)
  5. Is there other evidence that would have gotten the jury to the same place? (Is this game already out of hand?)
  6. Did the witness draw any conclusions about the inadmissible item or just mention it? (I guess this is sort of like the distinction between brushing a batter back and actually drilling him.)
These questions are intended to help the judge determine just how much damage was done as a result of the inadmissible testimony. In determining whether a mistrial should be declared, this damage has to be balanced against the likely effectiveness of a judge's instruction to the jury to disregard the inadmissible evidence. This is where the case law gets a little less sensible (big surprise there). The treatment in Peyton, however, is not bad.

Taken as a whole, the judge's instruction was not a pro forma and self- defeating admonition not to think about a pink elephant. On the contrary, the judge explained to the jurors, in rational and persuasive terms, why speculation about any hypothetical polygraph test would be unfair and unwarranted. A juror who, notwithstanding the judge's admonition, might have attempted to argue for conviction during deliberations on the basis of the stricken polygraph evidence would surely have faced a skeptical reception from his or her colleagues on the jury.
There is an excellent article by Lieberman and Arndt on what behavioral research tells us about the effectiveness of these limiting instructions. It is generally a pretty pessimistic story. In "Understanding The Limits of Limiting Instructions" (6 Psychol. Pub. Pol'y & L. 677), the authors analyze their own studies, as well as those of others in the field, to conclude that such admonitions very often do more harm than good. The "pink elephant" problem is a real one, as is "reactance", the natural inclination to rebel against limitations on one's freedom that have not been satisfactorily explained (Think about the behavior of any moody teenager).
While the authors offer several suggestions for improving the performance of limiting instructions where they might be used effectively, they reluctantly conclude that, in most instances, there simply isn't anyway to unring the bell.

Laura Pettitte makes a Surprise Appearance out of the Bullpen

This brings us back to what happened last week in the Roger Clemens trial. Judge Reggie Walton declared a mistrial on Thursday when video of Clemens's Congressional testimony, being shown to the jury, included a quotation by a Congressman of a sworn statement by Laura Pettitte, about a conversation she had shared with Andy Pettitte, regarding Roger talking about using Human Growth Hormone. It was third-degree hearsay and Judge Walton had very clearly ruled out its use by prosecutors.

Prosecutor Steven Durham tried to argue that, notwithstanding the judge's ruling on the matter, the particular video clip had been admitted into evidence without objection. This is a little like George Brett complaining that Billy Martin only challenged the pine tar on his bat after Brett had hit a home run with it, even though Brett had been using it all game. This is an interesting point, because it is quite possible that Clemens's lawyer, Rusty Hardin, didn't object to the clip precisely so that it would get played at trial, knowing full well that it would get the judge irate. This is, however, well within Hardin's rights. He need not object again to something that had already been categorically ruled out by the judge.

So, why didn't Judge Walton just admonish the jurors to disregard the reference to Laura Pettitte's statement? After all, it was very early in the trial. Andy Pettitte was likely to testify himself about the very same conversation. The reason that an admonition to disregard (limiting instruction) won't work in this case is that there is no way to explain to a jury why this statement shouldn't matter. The whole case is about credibility. Who said what to whom when? Who is credible and who is likely lying. Clemens needs to successfully challenge Andy Pettitte's recollection of conversations they had about performance enhancing drugs. He famously told Congress that Pettitte "must have misremembered." A jury is unlikely to buy this argument if they believe that Andy Pettitte related the whole conversation to his wife shortly thereafter.

With respect to the Peyton criteria outlined above, this case takes a big header on Number 4 and there is no way to explain to jurors why they should ignore Laura Pettitte's sworn statement. Sure, the judge can explain why, as a matter of law, they should ignore it; but, he'll never successfully explain why they should, as a matter of logic, or common sense. It is probative, and therefore prejudicial. This is the precise reason why it is impossible to convince a jury to ignore credible evidence that has been excluded on 4th Amendment grounds. The exclusion has everything to do with how the evidence was obtained and nothing to do with how useful it might be in reaching a verdict. Jurors can't turn off their brains that easily (and research shows that judges don't do it very well, either).

In light of the nature of the prosecution's transgression, and the difficulty in really convincing a jury to disregard it, Judge Walton probably made the right call in declaring a mistrial in this case. I guess the rest of us will just have to wait a few months more to see Clemens's smug face try to hide his contempt for the jurors who will decide his fate. His next start has been pushed back a few days.

The mistrial is probably better for Clemens than for Durham. Clemens has taken every opportunity available to delay this trial. Every day that goes by, the government gets a little more in debt and the public cares a little less about steroids in baseball. Now, in early September, Judge Walton will decide whether there will be a retrial, and, if so, under what evidentiary rules. That is, the ump has to decide whether to default the game or reschedule it (maybe as part of a double header with the Barry Bonds retrial).

In this game, Roger took one for the team. But that's OK, he owns the team.

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  1. Brilliant piece, Edward. The world is a baseball game.

  2. Great piece. Interesting how baseball can be related to the law. Reminded me of an article one of my law professors wrote. A Statutory Analysis of the "Laws" of Little League Baseball, 9 Marq. Sports L.J. 103 (1998), by J. Versteeg of New England Law | Boston.

  3. There is a real scholarly journal regarding baseball, called The National Pastime. My friend, Dave King, once published an article there with one of my favorite titles, "Notes on the Uniform Distribution." It is about how often teams changed their uniforms over time. It largely dispels the myth that teams change their uniforms more often now, so as to cash in on merchandise sales. You can find the article at:

  4. For those who might have missed it, Judge Walton concluded that while the prosecutors might have been "intentionally careless," it was not for the purpose of inciting the defense to move for a mistrial. Judge Walton (rightly, I think) reasoned that it was not actually in the interest of the prosecution to delay the trial any longer. As such, he denied defense motion for a dismissal. The retrial has been postponed, however, due to a conflict in Rusty Hardin's schedule. It most certainly won't hit a courtroom until 2012.