Now the Justice Department will have another chance to try Clemens, an 11-time all-star accused of perjury, obstruction of Congress and making false statements. Clemens could face 30 years in prison if convicted on all charges.
The high-stakes trial begins Monday with jury selection, a process expected to include lengthy questioning of the backgrounds and biases of more than 80 Washingtonians. Some legal observers familiar with the case said the retrial gives the government an advantage because prosecutors have had a preview of the defense team’s approach and time to retool and prepare witnesses.
The government has the “upper hand” after hearing the defense’s road map for the case the first time around, said Steven Levin, a former federal prosecutor and criminal defense lawyer.
But Michael Volkov, another former federal prosecutor, said the government must overcome the challenge of convincing jurors of the importance of bringing such a case when no one was injured and no major national policy was affected by the allegations.
Volkov suggested that the government would have to tie its case to broader concerns about steroid abuse in professional sports and its potential impact on children.
“The question is, how do prosecutors make people care?” Volkov said. “Everybody believes Congress lies to them anyway.”
In their first round of opening statements last July, prosecutors said Clemens used performance-enhancing drugs to prolong his storied career and then lied about it to a House committee to shore up his legacy.
Clemens, 49, won an unprecedented seven Cy Young awards during his 24-year career with the Boston Red Sox, Toronto Blue Jays, New York Yankees and Houston Astros. His defense team, led by Rusty Hardin, said Clemens had a track record as a hard-working professional who was clean, and never lied.
A central figure in the case is Clemens’s former trainer, Brian McNamee, who told Congress he had injected Clemens with performance-enhancing drugs. Clemens’s lawyers have said McNamee, whose story about steroids has changed over the years, cannot be trusted.
Finding an impartial jury for such a well-publicized case could be tricky. The trial coincides with the start of the Major League Baseball season and the return to the sport of pitcher Andy Pettitte, a former Clemens teammate and friend who may be a key government witness.
“It makes a difficult process exponentially more difficult,” said Andrew White, a former federal prosecutor.
The Justice Department initially took the case after Congress requested an investigation into Clemens’s testimony to the House Committee on Oversight and Government Reform in 2008. Clemens denied using steroids or human growth hormone following a 2007 report by former senator George Mitchell that identified Clemens and dozens of other players as having taken banned substances.
Major League Baseball has since 1971 prohibited the use of steroids and human growth hormone — known as HGH — without a prescription. The league explicitly banned steroids in 1991 and HGH in 2005.
U.S. District Judge Reggie B. Walton declared a mistrial last July after the government showed a video clip that included barred evidence.
Prosecutors led by Steven Durham and Daniel Butler played a videotaped segment of congressional testimony that referenced Pettitte’s wife. Andy Pettitte, who recently came out of retirement to rejoin the Yankees and was also named in Mitchell’s report, told congressional investigators Clemens confided in him about taking a performance-enhancing substance. He said he shared the conversation with his wife.
Laurie Pettitte gave Congress an affidavit backing her husband’s claims, and Walton ruled before the first trial that prosecutors could not raise her statements before the jury.
While Walton said he was troubled by the government’s misstep, he ruled that a second trial would not violate Clemens’s constitutional protection against double jeopardy, which ensures defendants are not subjected to endless prosecutions.