U.S. District Judge Reggie Walton in Washington said today that he's considering barring further prosecution of Clemens on double-jeopardy grounds and set a hearing for Sept. 2 on whether to let the case proceed.
Clemens, 48, a seven-time Cy Young Award winner, is accused of lying to Congress about his use of steroids and human growth hormone. 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 HGH. Clemens told Congress that Pettitte misheard the conversation.
Walton said that prosecutors violated a court order today when they showed the jury of 10 women and two men a video clip of the 2008 hearing where Pettitte's wife was discussed. Walton ruled earlier that any reference to an affidavit given to Congress by Laura Pettitte couldn't be admitted into evidence in the government's presentation of its main case.
"Mr. Pettitte's testimony is critical as to whether this man goes to prison," Walton said, noting that the video improperly bolstered Pettitte's credibility with the jury. "I don't see how to unring the bell."
'Better Not'
Clemens's defense attorney, Rusty Hardin, when asked to comment after today's proceeding, said, "I'd love to, but I better not."
Bill Miller, the spokesman for the U.S. attorney's office in Washington, said in a statement that Walton's order barring anyone involved in the case from discussing it precluded comment.
Clemens's mistrial is the second federal perjury trial of a former Major League Baseball player in three months to end inconclusively. Barry Bonds, the home-run record holder, was convicted in federal court in San Francisco in April of obstructing justice for statements he made to a grand jury in 2003 when asked whether his trainer ever gave him anything that required a syringe injection.
Jurors in the Bonds trial couldn't agree on whether he lied in saying he didn't knowingly take steroids and take human growth hormone or receive injections by his trainer. A mistrial was declared on those counts.
The U.S. has yet to say whether he will be retried.
Thirty Years
Clemens was 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 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 statements Clemens made 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.
During the public hearing on Feb. 13, Clemens testified while a few feet away from the government's main witness in the trial, his former trainer Brian McNamee, who said he injected Clemens with both drugs while Clemens pitched for the Toronto Blue Jays and the New York Yankees.
Opening Statement Stopped
Walton stopped Durham during his opening statement as the prosecutor told jurors that Clemens's former Yankee teammates Pettitte, Chuck Knoblauch and Mike Stanton would be called to testify how they used HGH. Walton ordered jurors to disregard the reference to the other players, which violated a pre-trial order.
Walton also ruled July 6 that the government was barred from using or referring to any part of an affidavit by Pettitte's wife, Laura, who swore her husband had told her about a conversation with Clemens in which Clemens acknowledged using the drugs.
Laura Pettitte could only be brought up in the trial to rebut information from the defense, Walton ruled.
The trial was stopped as Durham took testimony from the government's third witness, Phil Barnett, the House staffer who deposed Clemens.
Durham played a clip of Representative Elijah Cummings questioning Clemens during the Feb. 13, 2008 hearing. As the video played, a transcript of what was being said was highlighted on the lower portion of the screen.
Pettitte's Wife
Cummings mentioned an affidavit the committee received from Pettitte's wife.
Walton stopped the trial and ordered the lawyers to the bench. After a few minutes, he sent the jurors out of the courtroom.
"I clearly ruled that Mr. Pettitte's wife and what Mr. Pettitte said to his wife could not come in," Walton said. "This clearly runs afoul of my pretrial rulings."
Walton said that he was "perplexed" that the government's exhibits hadn't been altered after his ruling.
"A first-year law student knows you can't bolster the credibility of one witness with clearly inadmissible evidence from another witness," Walton said.
A half hour later he declared the mistrial.
Normally, a criminal defendant can't be tried twice for the same crime. Exceptions include when a jury fails to reach a unanimous verdict, said Stanford University criminal law professor Robert Weisberg.
'Procedural Goof-Up'
"A procedural goof-up shouldn't preclude a retrial, unless the judge believes it involves intentional, egregious misconduct by the prosecutor," said Weisberg, citing a Supreme Court ruling.
A mistrial so early in a case is "almost unheard of," Weisberg said.
The government's last high-profile loss in a Washington courtroom was the case against the now-deceased Alaska Republican Senator Ted Stevens. U.S. District Judge Emmet Sullivan threw out Stevens' 2008 conviction for corruption the following year because federal prosecutors withheld evidence from the defense. Sullivan ordered an investigation into whether the government's "shocking" conduct was criminal.
During the course of a Justice Department probe of the matter, one of the prosecutors, Nicholas Marsh, killed himself. Unlike the Clemens case, Stevens prosecution was handled by the Justice Department's public corruption unit, not by the U.S. Attorney's office in Washington.
The case is U.S. v. Clemens, 10-cr-00223, U.S. District Court, District of Columbia (Washington).
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