Updated 1:25 p.m.
Lawyers for former baseball star Roger Clemens today urged a Washington federal judge to throw out the government's perjury and obstruction case, saying prosecutors engaged in misconduct in presenting to jurors evidence that was not allowed.
U.S. District Judge Reggie Walton declared a mistrial in July after prosecutors in the U.S. Attorney’s Office for the District of Columbia showed jurors a video that contained information the judge had previously said was inadmissible.
The prosecution, led by assistant U.S. attorneys Steve Durham and Daniel Butler, in court papers called the error inadvertent and asked Walton not to dismiss the case against Clemens. Durham is a supervisor in the fraud and public integrity section.
A lawyer for Clemens, Cooley partner Michael Attanasio, said in court this afternoon that the prosecution went way off track. He disputed the government’s contention the error stemmed from the “press of business.”
“Something has gone wrong here and it continues to this day,” Attanasio told Walton. “And that something is a win at all cost mentality.”
Walton expressed doubt in court this afternoon that prosecutors made a mistake.
“I would hate to believe that they blatantly disregarded rulings I made,” Walton said. “But it’s hard for me to reach any other conclusion.”
The former Major League Baseball pitcher, who was in court today with his lawyers, including Houston’s Russell Hardin Jr., was charged in Washington in August 2010 with lying to Congress when he denied in testimony ever using performance enhancing drugs.
The evidence at issue is a video of congressional testimony in which Maryland Rep. Elijah Cummings (D) noted an affidavit that the wife of former Clemens teammate Andy Pettitte submitted in the case.
Pettitte’s wife told investigators that she and her husband had two conversations about Clemens and drug use. Prosecutors said the evidence bolstered Andy Pettitte’s planned testimony that he and Clemens had conversations about drug use. Clemens said Pettitte’s recollection is faulty.
Prosecutors alleged in court papers that Clemens, in seeking to block a retrial, wants to obtain an "unwarranted windfall” from what the government’s team called an inadvertent error during the trial.
Addressing the court, Attanasio said Clemens’ defense team did not make its prosecutorial misconduct allegations lightly. Attanasio said he and Butler worked together in the Justice Department’s Public Integrity Section years ago and that he has respect for him.
Prosecutors, Attanasio declared, were “enamored” with the video evidence presented to jurors.
“This kind of tactical desire to get the upper hand is beneath the dignity of the United States Attorney’s Office,” Attanasio said. He said prosecutors made a "calculated" decision to get around earlier rulings from Walton.
Walton said in court that if the government knew its case well, prosecutors would surely know what was in its exhibits. At the same time, though, Walton questioned why Clemens’ lawyers did not object to the video evidence as it was being played.
An assistant U.S. attorney, David Goodhand, a supervisor in the appellate section, said disclosure of the Laura Pettitte evidence "was an inadvertent mistake, a mistake we regret." Goodhand said there was no intention to provoke Clemens' lawyers to seek a mistrial.
Prosecutors, Goodhand said, were adamant there was never any bad faith intent in putting Clemens on trial. He called Durham and Butler a "careful and scrupulous prosecution team." (Goodhand was not a member of the trial team. He entered the case after Walton declared a mistrial.)
Walton said in court this afternoon he believed his orders were clear in restricting what evidence the government was allowed to present.
The video evidence was the second time in as many days, during the trial, that prosecutors ran afoul of Walton's orders.
Durham in his opening statement violated Walton's order that banned prosecutors from noting that other players admitted receiving drugs from a key government witness. Prosecutors suggested that because Clemens' former teammates said they knew they were getting a banned substance, Clemens did, too.
Walton said prosecutors were not allowed to transfer knowledge in that fashion. “I thought that point was very clear,” the judge said.
"It does seem clear to me that, for whatever reason, there was a disregard of the rulings that I made and that that disregard is what precipitated the request (for a mistrial) and my ultimate conclusion that a mistrial was necessary," Walton said from the bench.
Walton said he would resume the hearing at 2:15 p.m.