Mistrial declared in Clemens perjury case

Judge rules prosecutors introduced inadmissible evidence

Roger Clemens stopped to sign a baseball for a fan as he left the federal courthouse in Washington after a judge declared a mistrial on Thursday in his perjury trial. (Reuters) Roger Clemens stopped to sign a baseball for a fan as he left the federal courthouse in Washington after a judge declared a mistrial on Thursday in his perjury trial.
By Shira Springer
Globe Staff / July 14, 2011

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WASHINGTON — The Roger Clemens perjury trial came to a sudden and dramatic halt today when US District Judge Reggie B. Walton declared a mistrial shortly before noon.

Walton scolded Assistant U.S. Attorney Steven Durham for introducing inadmissible evidence that potentially bolstered the credibility of Andy Pettitte, Clemens’ former teammate and a key prosecution witness. Walton called for a Sept. 2 hearing to determine whether to hold a new trial.

“He's entitled to a fair trial," said Walton. "He now cannot get it."

Upon exiting the courthouse and facing a large group of reporters, cameramen and photographers, lead defense attorney Rusty Hardin did not comment on the proceedings because of a still-in-effect gag order. But he smiled and said, “It’s a beautiful day,” then walked away.

Clemens, also cognizant of the gag order barring public comments by trial participants, said nothing about what transpired this morning in the sixth floor courtroom at the E. Barrett Prettyman United States Courthouse.

“You good?” he said, as reporters and cameramen surrounded him during his walk from the courthouse to a nearby Au Bon Pain for lunch. “You done? I appreciate you letting us walk home now.”

While he never smiled, he did stop to sign a pair of baseballs for two Red Sox fans. Clemens played baseball for four major-league teams, including the Red Sox, during a 24-year career.

Hardin asked for a mistrial after the prosecution revealed a statement from Laura Pettitte, wife of former Yankees pitcher Andy Pettitte, to the jury, violating pre-trial orders. Those orders prohibited counsel from bringing up any Laura Pettitte testimony, unless in rebuttal.

A conversation between Andy Pettitte, a former Clemens teammate and friend, and Clemens is central to the prosecution’s case. Andy Pettitte has said Clemens told him in he used human growth hormone (HGH) in a conversation that took place in 1999 or 2000.

Pettitte also claimed he told his wife about the conversation the same day it happened. It is disputed whether Clemens mentioned using human growth hormone to Andy Pettitte. Clemens has contended Pettitte “misheard” and “misremembered.”

While prosecutors wanted Laura Pettitte to testify to support her husband’s version of events, Walton wasn’t inclined to let that happen, citing the fact that she never spoke directly to Clemens.

Yesterday morning, the jury was shown several video clips of Clemens’ testimony before the House Committee on Oversight and Government Reform in February 2008. During the last clip, Representative Elijah Cummings, D-Md., mentioned the conversation between Laura Pettitte and her husband. In the same video clip, Cummings also offered his opinion that Pettitte seemed to be a truthful man.

“I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,” said Walton.

The prosecution also violated pre-trial orders pertaining to admissible evidence during Durham’s opening statement. Durham talked about Clemens’ former Yankees teammates, Chuck Knoblauch and Mike Stanton, using human growth hormone. In pre-trial hearings, Walton worried that such statements would portray Clemens as guilty by association.

In angry comments directed toward the prosecution, Walton said, “Government counsel doesn’t do just what government counsel can get away with doing….I’m very troubled by this. A lot of government money has been used to reach this point. The government should have been more cautious. I don’t see how I can un-ring the bell.”

By that, Walton meant that he could not figure how the jury’s exposure to statements by Laura Pettitte could be erased from memory so those statements did not later influence decision-making.

“[Andy Pettitte] is a serious witness,” said Walton. “Mr. Pettitte’s testimony is critical as to whether this man [Clemens] goes to prison. The government should have taken steps to make sure this didn’t happen.”

Walton took a 45 minute break to consider the mistrial motion and consult with a colleague. When he returned to the bench and brought the jury back into the courtroom, Walton looked crestfallen at the turn of events in the courtroom.

“There are rules that we play by and those rules are designed to make sure both sides receive a fair trial,” said Walton. “When a judge makes a rule about what evidence can and cannot be presented to the jury [counsel] is obliged to comply with that ruling … The government did not take the effort it should have taken to alter evidence to comply with the ruling made. As a result, the ability of Mr. Clemens to get a fair trial with this jury would be very difficult, if not impossible.”

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