Federal prosecutors urged a federal judge on Friday to allow them to retry Roger Clemens on perjury and related charges, arguing that a high-profile blunder on their part should not block them from getting another shot at the legendary pitcher.
In a 36-page filing in the District’s federal court, prosecutors provided their first official explanation for why they presented barred evidence to jurors on the second day of testimony in July, forcing a federal judge to declare a mistrial.
“The government’s error was a mistake, not misconduct,” they wrote in court papers.
U.S. District Judge Reggie B. Walton ordered prosecutors and defense attorneys to submit legal arguments about whether he should grant another trial in advance of a Sept. 2 hearing. Walton is weighing whether another trial would violate Clemens’s right to avoid double jeopardy, a legal doctrine meant to protect defendants from repeated prosecutions for the same alleged offense.
Clemens is charged with perjury, obstruction of Congress and making false statements related to his 2008 testimony before a House committee in which he denied using performance-enhancing substances.
Before jury selection, 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.
Clemens’s legal team has argued in court papers that prosecutors made such an egregious mistake that they should not get another chance at their client. They have also said that prosecutors intentionally tried to provoke them into seeking a mistrial because their case was going badly.
Federal prosecutors countered Friday that the error was inadvertent and that they thought the trial was going in their favor. They said their mistake resulted from the timing of a judge’s ruling and the pressing work of a trial.
“As regrettable as this mistake was,” prosecutors wrote, “it does not warrant the extreme measures of a prohibition on any retrial.”