Lawyers for Roger Clemens today urged a Washington federal judge to prohibit prosecutors from putting the former baseball star on trial again, saying the government engaged in intentional misconduct and should be punished.
Clemens' attorneys, including lead counsel Russell Hardin Jr. of Houston, said the legal principle of double jeopardy prohibits a retrial. The defense lawyers also asked for dismissal of the indictment.
Judge Reggie Walton of U.S. District Court for the District of Columbia abruptly declared a mistrial July 14 after prosecutors presented evidence the judge had earlier ruled inadmissible.
The presentation of the disputed evidence occurred on the second day of testimony, and it was the second time in as many days the government drew criticism from the trial judge. Walton asked the attorneys to address whether double jeopardy precludes a retrial.
Clemens’ attorneys today set out to convince Walton that the prosecution’s conduct was intentional. The government, Hardin said, ignored court orders and shirked duties to make sure exhibits confirmed with pretrial rulings.
“The law is many things in this nation but most of all it is about fairness,” Hardin said. “The government had its day in court and squandered it with misconduct that irretrievably wasted time, money, and the opportunity for a one-time, fair resolution of these charges for all involved.”
The evidence in question was a videotape from the congressional hearing that is central to the government’s case against Clemens, who is charged with lying to Congress when he denied ever using steroids or performance-enhancing drugs.
On the video, jurors got to hear about an affidavit from the wife of former Yankees pitcher Andy Pettitte. Laura Pettitte identified two conversations she had with her husband about Clemens.
The affidavit bolsters Andy Pettitte’s claim he and Clemens discussed the use of performance-enhancing drugs. Walton had earlier ruled that prosecutors could introduce the evidence as rebuttal.
Prosecutors noted in court that Clemens’ attorneys failed to object to the evidence. The judge first picked up on the inadmissibility of the affidavit evidence. But it was the defense that had earlier asked Walton to restrict the ability of the government to use the Laura Pettitte affidavit.
"There was no intention to run afoul of any court ruling, your honor," Durham told Walton in court, court records show.
Hardin said in court papers that prosecutors “planned to put Ms. Pettitte’s statements before the jury in this backdoor fashion.”
Clemens’ attorneys argue that the two prosecutors in the case, assistant U.S. attorneys Steve Durham and Daniel Butler, knew the contents of the government’s video exhibit and that the government was “willing to go as far as possible until its conduct raised an objection.”
“At no time did the Government state that the publication of Mrs. Pettitte’s statements to the jury was accidental—because it wasn’t,” Clemens’ lawyers said. “If the publication of Mrs. Pettitte’s statements to the jury was an accident, the more natural response would have been for the prosecutors to apologize immediately or to otherwise express remorse or contrition for the oversight.”
On the first day of trial, the prosecution ran afoul of court orders and drew an admonition from Walton.
Walton interrupted Durham’s opening remarks after the prosecutor told the jury it would hear testimony from three former baseball players about their use of human growth hormone. Walton had earlier ruled out testimony of other players’ use of performance enhancing drugs.
Durham, asked to explain the violation, said in a bench conference that the testimony of the former teammates substantiates why Clemens would use drugs, according to Hardin's court filing.
“They play at the same time on the same team,” Durham said, according to court papers. “It explains why in the world this man would choose to use these drugs.”
After the discussion at the bench, Walton told jurors to disregard the prosecutor’s statement.
Prosecutors are expected to file their opposition to the defense demand by Aug. 19. A spokesman for the U.S. Attorney’s Office, William Miller, declined to comment. Walton early on imposed a gag order in the case.