Former Major League Baseball pitcher Roger Clemens must face another trial on charges that he lied to Congress about using performance-enhancing drugs including steroids, a federal judge in Washington said.
U.S. District Judge Reggie Walton said yesterday that Clemens can be tried again because he couldn’t determine, based on the record, that prosecutors intentionally caused a mistrial in July by showing jurors barred evidence. The government was two days into presenting its case at the time. Walton, ruling from the bench, set jury selection for April 17.
“I just don’t find anything happened so early in the proceedings that would give me the factual basis to conclude” that the government “took the action they’re accused of by goading the defense into a mistrial,” Walton said.
Walton said that he would consider a request by Clemens to make the government pay his expenses stemming from the mistrial.
“I’m very troubled by fact that it cost Mr. Clemens a lot of money to go through,” Walton said. “I don’t know what authority I would have to require those expenses be reimbursed, but I would entertain a defense motion. I think fundamental fairness would be to reimburse him for those expenses.”
Clemens, 49, in a motion filed in July, argued that under the U.S. Constitution he can’t face a jury twice for the same crime. His lawyers allege that the experienced prosecutors on the case intentionally provoked the mistrial after setbacks cast doubt on whether Clemens could be convicted.
Clemens’ lawyer, Rusty Hardin, said they would decide within days whether to seek an immediate appeal of Walton’s ruling. Walton ended the first trial on July 14 after prosecutors showed jurors a video clip containing information he had ruled couldn’t be part of the government’s perjury and obstruction case.
Shortly before Walton ruled, Steven Durham, the lead prosecutor on the case and an assistant U.S. attorney in Washington, apologized to Walton and said the mistake was not purposeful.
“I feel I’ve let a lot of people down here,” Durham said. “My father was in the courtroom on July 14. I would never dishonor my family by violating a rule of the court. I would not do that.”
The video clip disclosure was an oversight so the double jeopardy bar does not apply, David Goodhand, an appellate lawyer in the U.S. Attorney’s Office in Washington, told Walton. The U.S. also alleged the defense team is partly to blame, because they had the video clips “days prior” and didn’t object to the clip being shown.
Michael Attanasio, another lawyer for Clemens, told Walton that prosecutors made a “calculated end-run” around the judge’s rulings in an effort to win a conviction or provoke a mistrial.
“Something has gone wrong here and continues to this day and that’s a win-at-all-cost mentality,” Attanasio told Walton. “This was a tactical desire to get the upper hand and it is beneath the dignity of the U.S. Attorney’s Office.
“We cannot let that go with a handshake,” Attanasio added. “It’s too important to our client. They have walked over him in an effort to start over and it’s not right.”
The seven-time Cy Young Award winner is charged with one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury in connection with a congressional probe of ballplayers’ alleged use of performance-enhancing drugs. If convicted on all charges, he faces as long as 30 years in prison and a $1.5 million fine.
The charges stem from Clemens’s statements to the House Committee on Oversight and Government Reform in February 2008, in an interview with committee staff and later at a public hearing. Clemens, under oath, denied ever using anabolic steroids or human growth hormone, according to the indictment.
Walton said that prosecutors violated a court order when they showed the jury of 10 women and two men a video clip of a 2008 congressional hearing where the wife of government witness Andy Pettitte was discussed. Walton ruled earlier that no references to Laura Pettitte, or an affidavit she gave Congress, could be made during the government’s case.
At the start of the trial, prosecutors said that Andy Pettitte, a former teammate, would testify about his close relationship with Clemens and how Clemens told him in 1999 or 2000 that he had used human growth hormone. Clemens told Congress that Pettitte “misremembered” the conversation.
Walton had limited the evidence from other players and Laura Pettitte, and then prosecutors found themselves unprepared to address newly discovered evidence that undermined the credibility of the government’s key witness, Clemens’s former trainer, Brian McNamee, Hardin said in court papers.
Hardin requested the mistrial, explaining that a transcript of hearing testimony detailing Laura Pettite’s affidavit remained paused on the television screen in front of jurors for several minutes while the lawyers met with Walton at the bench.
The case is U.S. v. Clemens, 10-cr-00223, U.S. District Court, District of Columbia (Washington).
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