Responding to an attempt by Roger Clemens' attorney to bar a retrial in the former baseball superstar's perjury case, prosecutors filed a brief (PDF) today arguing that Clemens is "seeking to gain an unwarranted windfall" from an "inadvertent error."
U.S. District Judge Reggie Walton declared a mistrial July 14 after prosecutors played a video to the jury that contained information Walton had previously ruled was inadmissible. Clemens’ lawyers filed to prohibit a retrial, claiming the government engaged in intentional misconduct and that a retrial was barred by double jeopardy.
In the brief filed this afternoon, prosecutors argued that, “the government’s error was a mistake, not misconduct, and certainly not misconduct intended to provoke a mistrial.” The evidence at issue was a video clip of congressional testimony that referenced an affidavit from the wife of former Yankees pitcher Andy Pettitte, regarding conversations Pettitte claims he had with Clemens about using steroids. Walton had previously said that evidence could not be introduced.
Prosecutors explained in the brief that evidence for trial had already been prepared when Walton made his ruling on inadmissibility, and the attorneys didn’t focus on looking at whether a reference to the affidavit might be embedded in a question asked during the congressional hearings.
A motion hearing is scheduled for Sept. 2.