“There are rules that we play by and those rules are designed to ensure that both parties receive a fair trial,” Walton told jurors before dismissing them from service. “Evidence that I have excluded from this trial came before you. As a result of that, in my view, the ability of Mr. Clemens with this jury to get a fair trial would be very difficult, if not impossible.”
Walton’s ruling makes it uncertain whether Clemens will ever go back on trial. The judge asked prosecutors to submit legal arguments about whether retrying the 11-time all-star would violate his constitutional protection against double jeopardy. Legal scholars said the decision could go either way.
“It could be close,” said Ellen Podgor, a professor at Stetson University College of Law.
Because the mistrial resulted from prosecutorial error, Walton could choose to dismiss the case. The double-jeopardy protection was established to ensure that defendants are not subjected to endless and unfair prosecutions for the same offense.
But the error occurred early in the trial and defense lawyers didn’t object when the evidence was presented to jurors, factors that benefit prosecutors, legal experts said.
Clemens, who is charged with lying to Congress about using performance-enhancing drugs during his decorated career, was surrounded by reporters and photographers as he departed the District’s federal courthouse.
Clemens declined to comment on the courtroom outcome. Several times, the horde around Clemens stopped as he signed baseballs thrust into his hands by fans.
Citing a judicial gag order, Clemens’s attorneys declined to answer questions, as did federal prosecutors.
The request for a mistrial came from Clemens’s lawyers after prosecutors mistakenly played a portion of congressional testimony that referenced the wife of former pitcher Andy Pettitte, a friend and former teammate of Clemens’s.
Pettitte told congressional investigators that Clemens had confided in him in 1999 or 2000 that he had taken a performance-enhancing substance. Pettitte also told congressional investigators that he told his wife about that conversation. She provided an affidavit to Congress backing her husband’s claims.
Before the trial began, Walton had ruled that prosecutors could not raise Laurie Pettitte’s statements before the jury because it was hearsay and would be unfair to Clemens.
After the ruling, the prosecutors in the case, Steven Durham and Daniel Butler, sat slumped in their chairs, staring at paperwork in front of them. Colleagues and officials close to the prosecutors said the men had made an inadvertent error.