The prosecutors in the Roger Clemens perjury case said today the former baseball pitcher's defense team is not entitled to legal fees from the government as a sanction for the botched prosecution.
Clemens' lawyers, including Houston’s Russell Hardin Jr., want Judge Reggie Walton of Washington federal district court to order the government to pay thousands of dollars in legal fees following the mistrial in July.
Walton terminated the trial after prosecutors presented evidence to jurors that the judge had previously restricted. The government’s legal team, including assistant U.S. attorney Steven Durham, said the prosecution didn’t intentionally violate court orders.
“The government recognizes that its mistake placed burdens on both this court and defendant,” the Clemens prosecutors, including Durham, said in court papers (PDF) filed this afternoon. “The government regrets this. This mistake, however, does not entitle defendant to attorney’s fees and costs.”
Durham and assistant U.S. attorneys David Goodhand and Daniel Butler noted that Walton has already ruled that prosecutors made a mistake at trial. The prosecutors said today that “no trial is perfect” and that allowing the imposition of fees for errors “would mire the federal courts in collateral litigation about the ‘costs’ of mistakes.”
In rejecting Clemens’ request to prohibit a second trial, Walton said he “remains perplexed as to why Mr. Durham, an experienced and skilled attorney, failed to prevent the circumstances” that led to the mistrial.
Walton said in court in September he did not know whether he has the authority to order the government to pay Clemens' defense team.
“I think fundamental fairness obviously would require that he be reimbursed for those expenses, but sometimes fundamental fairness doesn’t bear out when it comes to legal issues that a court has to resolve,” Walton said.
The prosecutors said Clemens’ legal team cannot invoke the Hyde Amendment, which provides some recourse for defendants in criminal cases, to recoup fees. Durham said Clemens was not the prevailing party and he cannot show the prosecution was “vexatious, frivolous, or bad faith government misconduct.”
Durham said that even if Clemens could overcome the government’s assertion of sovereign immunity, he cannot show that the prosecution committed bad faith misconduct. Durham told Walton in the court papers today that the judge does not have the authority to order the government to pay legal fees.
The Clemens retrial is scheduled for April.