Beaning Roger Clemens - July 14, 2011 - The New York Sun

These guys may have just decided to take a knee on this one. Prosecutors track record on the issue is not very good. Maybe they just took a dive. We've heard of jury nullification courtesy of the O.J. trial, this may be a form of late-stage "prosecutorial nullification" or indifference. They just don't feel like they have a winnable case. This is not the court of public opinion where any idiot with a column can chime in with an opinion that passes as evidence. There are actually rules of procedure that both sides must adhere to. Much easier to convict in the court of public opinion.

The reason I think the prosecutors "took a dive" comes from the judges own words when he declared the mistrial -- the judge said the prosecutors committed missteps that "a first-year law student" would have avoided.

Beaning Roger Clemens - July 14, 2011 - The New York Sun:

"By our lights, this whole question has been so tainted in our eyes by the behavior of Congress that the right thing is to just drop it altogether now. Our sentiments are with the celebrated baseball columnist of the Sun, Tim Marchman, who told us this afternoon in respect of Mr. Clemens: “He probably juiced, he probably lied, and he’s probably the greatest pitcher who ever lived. It would be nice if it there were an easy way to separate those things from one another, but there isn’t, and anyway it’s a job for baseball historians, not prosecutors.”"

Book review of Jury Nullification: The Evolution of a Doctrine.
By Clay S. Conrad.
Reviewed by Glenn Reynolds

http://instapundit.com/lawrev/conradrv.htm

Every day, in courtrooms around the nation, cases like this end with the defendants being placed on probation, sent into diversion programs, or - perhaps most commonly - not prosecuted at all. At every stage up to the trial, state actors have discretion to drop prosecution, reduce the charges, or approve probation or diversion. That discretion is almost entirely unreviewable. It is also almost entirely without remark or inquiry.

...The prosecutor and judge, however, apparently felt that justice would not be served by sending the son of a local business leader - even one with prior offenses on his record - off to jail. Yet strangely enough, the notion that a jury might have discretion to make the same kind of judgment appears shocking, even un-American, to many. Jurors are unaccountable, after all (though prosecutors and judges are not especially accountable either, and are also shielded by absolute immunity).

Historically, this trust of prosecutors and judges over jurors is a relatively recent innovation, and it may not be entirely merited. Despite all the famous cases of alleged juror nullification, it is "prosecutorial nullification" - more commonly known as "prosecutorial discretion" - that plays the greatest part in keeping malefactors out of jail. Given that both kinds of nullification exist, which is more likely to constitute an abuse of discretion, or to take place in opposition to the values of the community? As Clay S. Conrad's book makes clear, the answer is not as easy as most modern discussion would have it. ....

Sammy Sosa claimed he couldn't speak English in front of Congress. There is plenty of evidence to show this to be an outright lie or perjury.

Mark McGwire blatantly refused to answer direct questions posed to him. Obstruction of justice.

Rafael Palmeiro wagged his finger indignantly to the Congress and stated he never used steroids. Then he failed a drug test a short time later. Yet the Congress felt they didn't have enough evidence that he lied.

So "prosecutorial indifference" or discretion or nullification is used all the time.

Miguel Tejeda might be go down as the only one to plead guilty and that was for lying about talking about steroid use with other players.

from the Washington Post:
Tejada to Plead Guilty to Lying to Steroids Investigators
http://www.washingtonpost.com/wp-dyn/content/article/2009/02/10/AR2009021001356_2.html?sid=ST2009021003699

The one count on which Barry Bonds was convicted of was for being evasive in an answer to the grand jury.

So while I don't take great pleasure in saying I told you so, well, I told you so all along.

Congress engaged in this witch-hunt, if you will recall, while our economy and our financial system were apparently in the simmering stage of a total meltdown.

We were told not to worry, that Congress could multi-task, they could walk and chew gum at the same time.

Apparently, just from observing how they have handled the recent debt limit talks, these clown-asses can't even handle ONE task at a time without totally screwing things up.

Once again, a sad example of our tax dollars at work.