Judge faults feds for mistrial

Times wires
Thursday, July 14, 2011

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

U.S. District Judge Reggie Walton called a halt to the trial 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 performance-enhancing 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."

Defense attorney Rusty Hardin, who had asked for a mistrial, patted Clemens on the back as the judge announced his decision. As he left the courthouse, Clemens did not comment. He accepted hugs from court workers, shook hands with the security guards and autographed baseballs for fans.

The quick end on 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. Walton could end the prosecution by declaring 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 offense. Experts said it was unlikely he would go that far, especially because the trial was just under way.

The Washington U.S. attorney's office, which tried the case, said it would have no comment because of a gag order Walton had imposed.

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

Clemens' former Yankees teammate and friend, Andy Pettitte, had told committee investigators 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 Pettitte's wife, Laura, as a witness to back up her husband's account; she says her husband told her about the conversation the day it happened. But Walton had said Laura Pettitte's statement wasn't admissible because 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 cut off the tape and eventually told the jurors to leave while he discussed the issue with attorneys in open court. Hardin asked for a mistrial; prosecutors suggested the problem could be fixed with an instruction to the jury to disregard the evidence. Walton responded they could never know what impact the evidence would have during the jury's deliberations.

"I don't see how I unring the bell," he said.

Source: http://www.tampabay.com/sports/judge-faults-feds-for-mistrial/1180618

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