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Posted at 03:56 PM ET, 09/02/2011

Judge allows Clemens retrial

A federal judge ruled Friday that prosecutors will have another chance to try former star pitcher Roger Clemens on charges that he lied to Congress about taking performance-enhancing drugs.

The ruling came during a hearing before U.S. District Judge Reggie B. Walton, who weighed whether a retrial would violate Clemens’ Constitutional rights. Walton said the decision was not an easy one, but he felt that he had no choice but to allow prosecutors to move ahead. He set an April 17 trial date.

Clemens went to trial in July in the District’s federal court on charges of perjury, obstruction of Congress and making false statements tied to testimony he gave in 2008 to a House committee. On July 14, just two days into testimony, Walton declared a mistrial after prosecutors played a video tape of House testimony that included information Walton had prohibited them from showing jurors.

“While I am very troubled by what occurred and it was something that should not have taken place,” Walton said, “I just think that the current state of the law would not justify me concluding on the record we have in this case that the double jeopardy clause bars reprosecution.”

Earlier in the hearing, Walton had castigated government lawyers, saying he had “a hard time reaching any other conclusion” than prosecutors had intentionally disobeyed one of his orders when they introduced the barred evidence.

Since the mistrial, defense lawyers have argued that prosecutors’ mistake was so egregious that they should not get another shot in court. A new trial, they have said, would violate the star pitcher’s right to avoid double jeopardy, a legal doctrine meant to protect defendants from repeated prosecutions for the same alleged offense.

On Friday, they added that prosecutors got an unfair preview of their defense and they had trued to make an end-run around Walton’s rulings. They also argued that the trial was going so poorly for prosecutors that they intentionally sought to goad defense lawyers into seeking a mistrial.

“We are deeply troubled by what happened,” Clemens’ lawyer Michael Attanasio said in court. “Something has gone wrong here. It continues to this day. That something is a win at all costs mentality. That’s not fair ... This case should end. Enough money has been wasted. The government doesn’t deserve a second bite at the apple. These are end runs around your ruling.”

For their part, federal prosecutors countered that they had simply made an innocent mistake and should be allowed another chance in the courtroom. Assistant U.S. Attorney Steven Durham apologized profusely to Walton on Friday, saying he took responsibility for mistakenly introducing the prohibited evidence. He noted that his father was attending court the day the mistrial was declared.

“I would not dishonor the court in this fashion,” Durham said. “I would not dishonor my colleagues. I feel like I have let a lot of people down here. . .I would never never dishonor my family by violating a rule of the court. I would never do that.”

At issue during the hearing were orders issued by Walton on the eve of what was expected to be a four to six week trial. Before jury selection in the first week of July, Walton had barred prosecutors from referencing information provided by Laura Pettitte, wife of former star pitcher Andy Pettitte. It was anticipated that he might be a star witness for the government because he was expected to testify that Clemens confided to him that he had taken a performance-enhancing substance.

When prosecutors played videotaped excerpts of congressional testimony that included references to Laura Pettitte buttressing her husband’s story, defense attorneys sought a mistrial. On Friday, Walton said that error troubled him. He also said he did not understand why prosecutors would play that portion of the tape because it included comments by a member of Congress praising Pettitte’s credibility. Such information “creates an inappropriate bolstering of a witness’ credibility before a jury,” Walton said.

By  |  03:56 PM ET, 09/02/2011

 
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