The federal judge in the Roger Clemens perjury case this morning declared a mistrial over a defense contention that prosecutors presented evidence to jurors the judge had deemed inadmissible.
Prosecutors, according to The Washington Post, played a video to jurors this morning that referenced an affidavit from the wife of government witness Andy Pettitte, the former Yankees pitcher and Clemens teammate.
Pettitte, a key witness for the prosecution, reportedly confided in his wife information that Clemens told him about drug use. The video played today featured congressional testimony in which a congressman, Elijah Cummings (D-MD), quoted from an affidavit Pettitte’s wife provided.
Laura Pettitte provided a three-paragraph affidavit to the U.S. House Committee on Oversight and Government Reform, in connection with the investigation of Clemens, court records show. The affidavit noted two conversations between Pettitte and his wife about Clemens.
A courthouse official confirmed that U.S. District Judge Reggie Walton declared a mistrial. Walton, according to published reports, said he was “troubled” that prosecutors presented evidence he said was not allowed at trial.
“We’ve spent a lot of money to reach this point. Government counsel should have been more cautious about what was presented so we are not in this situation,” said Walton, according to published reports.
Clemens' lawyers, including Russell "Rusty" Hardin, in recent court papers had urged Walton to block prosecutors from introducing evidence from Laura Pettitte regarding conversations between she and her husband about Clemens. The defense lawyers called any such evidence inadmissible hearsay.
"Testimony regarding Mrs. Pettitte’s second-hand conversations regarding Mr. Clemens is classic hearsay to which no exception appears to apply," Clemens' attorneys said in the court papers.
Walton's admonition today of the prosecution was the second in two days. During the government's opening statement Wednesday morning, Walton told jurors to disregard a statement Assistant U.S. Attorney Steven Durham made about the use of performance-enhancing drugs among other players.
Clemens is charged with perjury and other crimes for allegedly lying to Congress in 2008 when he denied ever using performance-enhancing drugs. Hardin yesterday in court said the defense plans to attack the credibility of Clemens' former trainer, Brian McNamee, a government witness.
Jury selection in the Clemens case last several days. Walton does not use a jury questionnaire.