Ex-Yankee Clemens Likely to Face New Jury Following Mistrial, Lawyers Say

Major League Baseball veteran Roger Clemens is likely to face another trial on charges of lying to Congress unless his attorneys can show prosecutors deliberately provoked yesterday’s mistrial, lawyers say.

The government's failure to steer clear of information barred to the jury by the judge's order probably won't be enough to keep the seven-time Cy Young award winner from being tried again, said Stanford University criminal law professor Robert Weisberg.

"A procedural goof-up shouldn't preclude a retrial, unless the judge believes it involves intentional, egregious misconduct," Weisberg said, citing a Supreme Court ruling.

Even so, U.S. District Judge Reggie Walton raised the possibility that the government may not be able to bring the former New York Yankees pitcher before a new jury.

After declaring a mistrial yesterday in federal court in Washington, Walton said he'd have to assess whether the government, "having precipitated this mistrial," can retry Clemens or whether "re-prosecution is barred by double jeopardy."

Under the U.S. Constitution, the government can rarely try a criminal defendant more than once for the same crime.

In the case of a mistrial, inadvertent mistakes by the prosecution aren't enough to force charges to be dropped, said Robert Mintz, a former federal prosecutor and a partner in McCarter & English LLP in Newark, New Jersey.


'Intentional and Egregious'

"The entire case will hinge in whether the judge viewed the conduct as intentional and egregious," he said, citing language in a 1982 U.S. Supreme Court ruling on the issue.

"We'll hear the government's explanation as to how this could have occurred," Mintz said, adding, "It's hard to imagine this was done intentionally."

Walton said that prosecutors violated a court order yesterday when they showed the jury of 10 women and two men a video clip of the 2008 congressional hearing where the wife of government witness Andy Pettitte was discussed. Walton ruled earlier that no references to Laura Pettitte, or an affidavit she gave Congress, could be made during the government's case.

Clemens, 48, is accused of lying to Congress about his use of steroids and human growth hormone. Prosecutors said that Andy Pettitte, a former teammate, would testify about his close relationship with Clemens and how Clemens told him in 1999 or 2000 that he had used HGH. Clemens told Congress that Pettitte misheard the conversation.


'Goes to Prison'

"Mr. Pettitte's testimony is critical as to whether this man goes to prison," Walton said yesterday, noting that the video improperly bolstered Pettitte's credibility with the jury. "I don't see how to unring the bell."

Clemens's attorney, Rusty Hardin, when asked to comment after yesterday's proceeding, said, "I'd love to, but I better not."

Bill Miller, the spokesman for the U.S. attorney's office in Washington, said in a statement that Walton's order barring discussion of the case precluded comment.

Clemens was charged with one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury in connection with a congressional probe of ballplayers' use of performance-enhancing drugs. If convicted on all charges, he faces as long as 30 years in prison and a $1.5 million fine.


Statements to House

The charges stem from Clemens's statements to the House Committee on Oversight and Government Reform in February 2008, in an interview with committee staff and later at a public hearing. Clemens, under oath, denied ever using anabolic steroids or HGH, according to the indictment.

During the public hearing on Feb. 13, the government's main witness in the trial, Clemens's former trainer Brian McNamee, said he injected Clemens with both drugs while his client pitched for the Toronto Blue Jays and the New York Yankees.

Walton stopped Durham during his opening statement as the prosecutor told jurors that Clemens's former Yankee teammates Pettitte, Chuck Knoblauch and Mike Stanton would be called to testify how they used HGH. Walton ordered jurors to disregard the reference to the other players, which violated a pre-trial order.

Walton also ruled July 6 that the government was barred from using or referring to any part of an affidavit by Laura Pettitte, who swore her husband had told her about a conversation with Clemens in which Clemens acknowledged using the drugs.


Rebuttal Information

Laura Pettitte could only be brought up in the trial to rebut information from the defense, Walton ruled.

The trial was stopped as Assistant U.S. Attorney Steven Durham took testimony from the government's third witness, Phil Barnett, the House staffer who deposed Clemens.

Durham played a clip of Representative Elijah Cummings questioning Clemens during the Feb. 13, 2008 hearing. As the video played, a transcript appeared on the screen.

Cummings mentioned Laura Pettitte's affidavit.

Walton stopped the trial and ordered the lawyers to the bench. While the video paused, Cummings's words stayed on the screen. After a few minutes, Walton sent the jury out of the courtroom.

"I clearly ruled that Mr. Pettitte's wife and what Mr. Pettitte said to his wife could not come in," Walton said. "This clearly runs afoul of my pretrial rulings."

Walton said he was "perplexed" that the government's exhibits hadn't been altered after his ruling.


'No Bad Faith'

Durham told Walton "there is no bad faith on the part of the government here."

Michael Attanasio, a lawyer for Clemens, said in court he had been "pestering" the government for new exhibits since the July 6 ruling and that Durham "cited resource constrictions at the U.S. Attorney's Office for why he didn't have them."

Walton granted Hardin's request for a mistrial after a half hour break in which, he said, he consulted his colleagues.

"If this man got convicted, from my perspective, knowing how I sentence, he goes to jail," Walton said. "And I'm not going to, under the circumstances, when this has happened, put this man's liberty in jeopardy."

Walton gave Hardin until July 29 to file a request that Clemens not be retried and scheduled a Sept. 2 hearing.

Mintz said the judge will "consider very carefully" whether to retry the case given the resources put into it, regardless of how angry Walton got at the government yesterday.


Government's Explanation

His decision will depend on the government's explanation of how the tape made it to the jury, Mintz said.

The mistrial highlights questions about the value of prosecuting Clemens to begin with, said Artur Davis, former House member and now a criminal defense lawyer at SNR Denton in Washington.

"This is not the wisest use of public resources," said Davis.

Steven Ross, general counsel to the House from 1983 until 1993, said "major resources were spent getting it to this point" and he doesn't expect the mistrial will change the Justice Department's commitment to prosecution.

"This is a failure not of the strength of the government's case, but of the simple execution in making sure there was editing of electronic evidence," said Ross, who leads the congressional investigations practice at Akin Gump Strauss Hauer & Feld LLP in Washington.

The case is U.S. v. Clemens, 10-cr-00223, U.S. District Court, District of Columbia (Washington).

By Tom Schoenberg and Ann Woolner, tschoenberg@bloomberg.net

Source: Bloomberg