Within moments of the tape’s rolling, the trial was over, and the prosecutors sat slumped and dejected in their chairs.
A judge had declared a mistrial, ruling that the tape included evidence he had barred from the jury.
The dramatic decision left legal observers wondering how such a high-profile prosecution could end so abruptly, on just the second day of testimony. A review of transcripts and interviews with people knowledgeable about what happened reveals that federal prosecutors did not intentionally introduce barred evidence to the jury. Despite years of experience, two well-respected prosecutors had made a basic mistake and not carefully reviewed the videos they planned to show jurors.
Their error was intensified because it occurred in front of a by-the-book judge who noticed it before defense lawyers could even raise an objection.
“Because of the prosecutors’ excellent reputations, you have to believe it’s a mistake, just a mistake,” said Tom Zeno, a former colleague of the two government lawyers. “What compounds the error here,” he added, “is that the judge runs a very tight ship and had high expectations of the prosecutors.”
The judge in the case is Reggie B. Walton, who will be weighing legal arguments in coming weeks to determine whether to grant prosecutors a retrial. Last week, the judge gave no hint about how he might rule.
First appointed to the D.C. Superior Court by President Ronald Reagan in 1981, Walton was tapped for the federal bench in 2001 by President George W. Bush. Since then, he has earned a reputation for being able to manage complex and high-profile trials.
In 2007, he oversaw the trial of I. Lewis “Scooter” Libby, who was convicted of lying about his role in the leak of an undercover CIA officer's identity. He sentenced Libby to 2 ½ years in prison — a sentence later commuted by Bush.
A former fullback on his college football team, he also isn’t afraid to take action. In 2005, he broke up an assault in Chevy Chase Circle by tackling the assailant.
“He’s a very solid, no-nonsense judge,” said Chief U.S. District Court Judge Royce C. Lamberth. “He did an outstanding job in the trial of Mr. Libby.”
Citing a judicial gag order, the two prosecutors in the Clemens case — Steven Durham and Daniel Butler — declined to comment. Former colleagues and defense lawyers said the men are straight shooters.
“Steve is a boy scout,” said Preston Burton, a former federal prosecutor now in private practice. “He is principled, fair and decent. Dan is an honest guy. Both are hard-working prosecutors with a lot of integrity.”