Mistrial is declared in Clemens case

Evidence ruled inadmissible

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By Shira Springer
Globe Staff / July 15, 2011

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WASHINGTON - The Roger Clemens perjury trial came to a sudden and dramatic halt yesterday when Judge Reggie B. Walton declared a mistrial, scolding Assistant US Attorney Steven Durham for introducing inadmissible evidence from the wife of a key government witness.

Clemens is “entitled to a fair trial,’’ Walton said. “He now cannot get it.’’

The judge dismissed the jury barely 24 hours after opening arguments, and scheduled a Sept. 2 hearing to determine whether to hold a new trial.

The former Red Sox pitcher is charged with lying to Congress when he steadfastly denied he used performance-enhancing drugs during a record-setting 24-year career. In the trial, the government planned to present physical evidence and testimony indicating the seven-time Cy Young Award winner owed his longevity and late-career success, in part, to steroid use.

Now, through its own misstep - letting jurors see and hear inadmissible testimony from Laura Pettitte, the wife of ex-Yankees pitcher Andy Pettitte, about Clemens’s alleged confession - the government may never get a chance to try a case it has been preparing for more than three years.

Clemens exited the E. Barrett Prettyman Courthouse through a side door followed by his sizable legal team. “I’m not going to say anything,’’ said an unsmiling Clemens, aware of the gag order prohibiting trial participants from public comments. He did stop to sign baseballs for a pair of Red Sox fans.

Lead defense attorney Rusty Hardin smiled broadly and said, “It’s a beautiful day.’’

The prosecution saw the day much differently. Durham said he did not believe he ran afoul of the court’s evidence rulings and “there was no bad faith on the part of the government.’’ In a statement, the US attorney’s office said it had “no comment about the developments today’’ and cited the gag order.

The courtroom drama started when Walton stopped the prosecution from showing more video of Clemens testifying before the House Committee on Oversight and Reform in February 2008. Paused on the screen was Representative Elijah Cummings, a Maryland Democrat, as he referenced a conversation between Pettitte, a former Clemens teammate and friend, and Pettitte’s wife, Laura. Beneath the paused picture, a transcription of the proceedings appeared with words from Laura Pettitte’s affidavit.

It read: “I, Laura Pettitte, do depose and state in 1999 or 2000, Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormone.’’

The judge had earlier barred Laura Pettitte’s testimony, except in rebuttal, on grounds she never spoke directly with Clemens.

The conversation between Andy Pettitte and Clemens is central to the prosecution’s case. While Pettitte maintains Clemens acknowledged using the hormone, Clemens has contended Pettitte “misheard’’ and “misremembered.’’

Prosecutors wanted Laura Pettitte to testify to support her husband’s version of events.

In the same video clip, Cummings praised Pettitte and offered his opinion that Pettitte seemed to be a truthful man, another development the judge considered problematic.

Agreeing with the defense’s reason for a mistrial, he further admonished the prosecution.

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

The testimony of Pettitte is key for the prosecution because he supports the version of events offered by longtime Clemens trainer Brian McNamee. In many respects, the prosecution’s case hinges on the credibility of McNamee, who has said he injected Clemens with performance-enhancing drugs, and Pettitte, who has said Clemens told him he used HGH. Walton called Pettitte “a serious witness’’ and his testimony “critical as to whether this man [Clemens] goes to prison.’’

The prosecution also violated pretrial rulings pertaining to admissible evidence during Durham’s opening statement on Wednesday. Durham noted that some of Clemens’s former Yankees teammates have acknowledged using HGH. In pretrial hearings, Walton worried that such statements would portray Clemens as guilty by association.

In more harsh comments directed toward the prosecution, Walton said: “Government counsel doesn’t do just what government counsel can get away with doing. . . . The government should have been more cautious.’’

Walton added that “I don’t see how I can un-ring the bell’’ - responding to the prosecution’s request to remedy the situation with a curative instruction to the jury. Walton was not convinced such an instruction to ignore the evidence would work, noting the “critical’’ nature of Andy Pettitte’s testimony and believing the jury’s exposure to Laura Pettitte’s inadmissible statements could ultimately sway deliberations.

Walton took a 45-minute break to consider the mistrial motion. When he returned, the judge looked crestfallen.

“There are rules that we play by and those rules are designed to make sure both sides receive a fair trial,’’ Walton said. “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.’’

Shira Springer can be reached at

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