Prosecutors in Washington today won a second chance to take on former pitching great Roger Clemens, convincing a federal judge that a retrial on perjury and obstruction charges is justified.
U.S. District Judge Reggie Walton said he was troubled by government conduct that led to a mistrial in July just days after the government began its case.
But Walton said the bar is high for double jeopardy to apply, and he rejected a defense motion to block a second trial.
Clemens defense lawyer Russell Hardin Jr. of Houston said the defense will decide soon whether to challenge Walton’s ruling on appeal. Walton today set the Clemens retrial for mid-April.
“I am very troubled by the fact we find ourselves in this posture,” Walton said in court this afternoon.
The declaration of a mistrial, the judge said, surely cost Clemens a substantial amount of money. Fairness, he said, should require the government to pay certain expenses.
Speaking from the bench, Walton said he did not have to decide whether prosecutors intentionally flouted court orders that restricted the evidence the government was allowed to present to jurors. The judge said he did not want to believe the government was so blatant as to intentionally violate an order.
Walton said there's little legal guidance on whether the circumstances in the Clemens case justified prohibiting the government from retrying the former Major League Baseball pitcher.
A lead prosecutor, Steve Durham, a veteran government lawyer in the District who specializes in fraud and public corruption cases, apologized in court today to Walton and to Clemens' defense team.
Speaking passionately for about 10 minutes, Durham said he did not intentionally violate any of Walton's orders. Durham, whose father was in court for a portion for the trial, said he felt he let down colleagues.
“When you make a mistake, you accept responsibility for it, you admit it, you’re honest about it, you try to learn from it,” Durham said. “You try to make amends for it and you apologize to those you’ve injured."
Durham said the government had no intent to jeopardize what it believes is a “righteous” case, one that should be presented to jurors for “fair adjudication.” Indeed, the prosecution is one of the highest profile cases in Washington federal district court in several years.
A lawyer for Clemens, Michael Attanasio, a Cooley partner in San Diego, said he accepts Durham at his word. But the defense lawyer said he did not hear such apologetic statements at the time the errors happened.
Instead, Attanasio said in court, prosecutors then spoke about how the defense was already in possession of the dispute evidence, a video that the judge said violated hearsay rules.