Judge declares mistrial in Clemens case

Almost as soon as it began, former baseball star Roger Clemens' perjury trial ended Thursday — in a mistrial the judge blamed on prosecutors and said a "first-year law student" would have known to avoid.

U.S. District Judge Reggie Walton left the question of a new trial up in the air. But he called a halt to the trial under way after prosecutors showed jurors evidence that he had ruled out — videotaped revelations that a teammate had said he'd told his wife Clemens confessed to using a drug.

Walton scolded prosecutors and said he couldn't let the former all-star pitcher face prison if convicted on such "extremely prejudicial" evidence.

"Mr. Clemens has to get a fair trial," Walton said. "In my view, he can't get it now."

Defence lawyer Rusty Hardin, who had asked for the mistrial declaration, patted an unsmiling Clemens on the back as the judge announced his decision. As he left the courthouse, Clemens did not comment but accepted hugs from a couple of court workers, shook hands with the security guards and autographed baseballs for fans waiting outside.

The quick end on only the second day of testimony was the second mistrial involving a superstar player accused in baseball's steroids scandal. Home run king Barry Bonds was convicted three months ago of obstruction of justice, but a mistrial was called on three more serious false-statements charges after jurors couldn't agree on a verdict.

Walton said he would hold a hearing Sept. 2 to decide whether Clemens should face another trial. Hardin told reporters, "I wouldn't even hazard a guess" about what Walton will decide.

Walton could end the prosecution by declaring that a new trial would run afoul of double jeopardy — the right not to be brought to trial twice on the same charges for the same offence. But experts said it was unlikely that he would go that far, especially since the trial was just under way.

"Generally speaking, mistrial does not bar a trial of the defendant when the defendant requested the mistrial," said Harry Sandick, a former prosecutor who now defends white-collar cases. He said a judge may make an exception for misconduct on the part of prosecutors, but this appears to have been a simple yet devastating mistake.

"How could the government not have reviewed each piece of evidence after the court's pretrial rulings?" he said. "This is crucially important, and prosecutors have to do this all the time."

No comment

The U.S. attorney's office in Washington, which tried the case, said it would have no comment because of Walton's gag order. Clemens also stayed mum.

"I'm not going to say anything," Clemens said as he left the courthouse. He and his legal team ducked into a nearby restaurant to escape the media horde following him.

The Clemens mistrial was the biggest embarrassment for the Justice Department in a high-profile case since the prosecution of Sen. Ted Stevens, R-Alaska, in which the government failed to turn over evidence favourable to the defence. That failure, two years ago, was so serious that Attorney General Eric Holder stepped in and asked a federal judge to throw out Stevens' convictions. The judge did so.

The unravelling of the current case began as prosecutors were showing jurors a video of Clemens' 2008 testimony before Congress. He is accused of lying under oath during that testimony when he said he never used performance-enhancing drugs during his 24-season career.

Clemens' former teammate and close friend, Andy Pettitte, had told committee investigators that Clemens confessed in 1999 or 2000 that he used human growth hormone. Clemens has said Pettitte "misremembers" or "misheard" their conversation.

Prosecutors had wanted to call Laura Pettitte as a witness to back up her husband's account because she says her husband told her about the conversation the day it happened. But Walton had said Laura Pettitte's statement wasn't admissible since it didn't involve direct knowledge of what Clemens said.

In the video prosecutors showed the jury, Rep. Elijah Cummings, D-Md., referred to Pettitte's conversation with his wife during the questioning of Clemens. Walton quickly cut off the tape and called lawyers to the bench for a private conversation for several minutes.

The video remained frozen on the screen in front of jurors with a transcript of what was being said on the bottom.

Cummings had been quoting from Laura Pettitte's affidavit to the committee. "I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones," the text on the screen read.

Asking for a mistrial

The judge eventually told the jurors to leave while he discussed the issue with lawyers in open court. Hardin asked for a mistrial, while prosecutors suggested the problem could be fixed with an instruction to the jury to disregard the evidence. Walton responded that they could never know what impact the evidence would have during the jury's deliberations.

"I don't see how I un-ring the bell," he said.

"Government counsel should have been more cautious," Walton said, raising his voice and noting that the case had already cost a lot of taxpayer money.

"I think that a first-year law student would know that you can't bolster the credibility of one witness with clearly inadmissible evidence," Walton said.

He said it was the second time that prosecutors had gone against his orders. The other occurred during opening arguments Wednesday when assistant U.S. attorney Steven Durham said Pettitte and two other of Clemens' New York teammates, Chuck Knoblauch and Mike Stanton, had used human growth hormone.

Walton said in pre-trial hearings that such testimony could lead jurors to consider Clemens guilty by association. Clemens' defence lawyers objected when Durham made the statement Wednesday and Walton told jurors to disregard Durham's comments about other players.

Joshua Berman, a white collar defence lawyer who used to work with Durham and Butler when he was at the Justice Department, said both men have excellent reputations as ethical and responsible lawyers.

"I think that mistakes get made, frankly, and they get made in every trial on both sides," Berman said. "Unfortunately here you are on day one of a very high profile trial."