A federal judge dealt a potentially fatal blow to the perjury trial of baseball legend Roger Clemens by declaring a mistrial after prosecutors committed the basic error of presenting barred evidence to the jury.
On just the second day of testimony, U.S. District Judge Reggie B. Walton said prosecutors erred in playing video of Congressional testimony referencing statements made by the wife of a “critical” witness in the case.
“I am very troubled by this,” said Walton said before declaring a mistrial. He said he felt that prosecutors’ actions had ensured that jurors would not be able to “render a fair and impartial” verdict.
Walton said he would hear arguments in coming weeks about whether prosecutors can re-try Clemens, one of the most-decorated pitchers in baseball history, without violating his constitutional right against double jeopardy.
In this case, it isn’t just up to prosecutors to decide whether to bring Clemens back to court. Because a jury already had been sworn and because the mistrial resulted from prosecutorial error, the decision will be Walton’s. He could choose to dismiss the case entirely.
Clemens, surrounded by a swarm of reporters and photographers as he marched from the District’s federal courthouse, declined to comment on his courtroom victory. Several times, the horde around Clemens stopped as he signed baseballs thrust into his hands by fans.
His lawyers, unable to supress grins, declined to comment, as did federal prosecutors. Both sides cited a judicial gag order in the case.
Charged with six counts of perjury, obstruction of Congress and making false statements, Clemens is accused of having lied when he testified before a House committee in 2008 that he had never taken performance-enhancing drugs. If convicted on all charges after what was expected to be a month-long trial, Clemens could have faced 30 years in prison, though sentencing guidelines call for 15 to 21 months behind bars.
The request for a mistrial came from Clemens’ 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.
Pettitte told Congressional investigators 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 when it took place. She provided an affidavit to Congress backing her husband’s claims.
Walton ruled that prosecutors could not raise Laurie Pettitte’s statements before the jury because he didn’t think it would be fair to Clemens.
On Thursday morning, prosecutors played Congressional testimony of Rep. Elijah Cummings asking Clemens questions about his alleged use of steroids and Human Growth Hormone. Cummings then quoted Laurie Pettitte’s affidavit to Congress and talked about how Pettitte seemed like a reliable witness.
Before defense lawyers could object, Walton ordered a halt to the proceedings, dismissed the jury and then excoriated prosecutors for violating his order preventing any mention of what Pettitte may have told his wife.
The judge called Pettitte a “critical witness” and said such information may unfairly bolster his credibility with jurors. He sharply criticized prosecutors, accusing them of making a mistake he would not expect from a novice attorney.
“A first-year law student would know you can’t bolster the credibility of one witness with clearly inadmissible evidence,” Walton said.
Irritated with prosecutors, Walton stopped the proceedings. He said he was worried that the information on the video would unfairly bolster Pettitte’s credibility with jurors.
“I don’t see how I can unring the bell,” he added, before leaving the bench to discuss the matter with a “colleague.”
Federal prosecutors barely got a chance to defend themselves before Walton left the courtroom. They had been admonished during opening statements for violating another order by Walton precluding them from introducing testimony from other ball players about their use of HGH.
Assistant U.S. Attorney Steven Durham said he had given the tapes to the defense lawyers and they hadn’t objected to them. He also noted that the comments about Laura Pettitte were in the context of a broader discussion with Clemens about his own denials about HGH and steroid use.
Clemens said at the Congressional hearing that Pettitte had misheard or misremembered their conversation and he asserted that he had never admitted to Pettitte that he had taken HGH.
A clearly chagrined Durham also told Walton that “we are not evading any responsibility” shortly before Walton left the bench.
This post has been updated.