"He's entitled to a fair trial," said Walton. "He now cannot get it."
Lead defense attorney Rusty Hardin had asked for a mistrial because the prosecution revealed a statement to the jury that violated a pre-trial order. The prosecution also violated pre-trial orders when Assistant U.S. attorney Steven Durham talked about the Yankees' drug use during his opening statement.Walton scheduled a Sept. 2 hearing to determine whether to hold a new trial for the former baseball star who pitched for four teams, including the Red Sox, during his 24-year career. Walton told jurors he was sorry to have wasted their time and spent so much taxpayer money, only to call off the case.
"There are rules that we play by and those rules are designed to make sure both sides receive a fair trial," Walton told the jury, saying such ground rules are critically important when a person's liberty is at stake.
He said that because prosecutors broke his rules, "the ability with Mr. Clemens with this jury to get a fair trial with this jury would be very difficult if not impossible."
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 out how the jury’s exposure to statements by Laura Pettitte, wife of former Yankees pitcher Andy Pettitte, can be erased from their memory so it does not later influence decision-making. Laura Pettitte is someone designed to bolster the credibility of her husband, a former teammate of Clemens who was expected to be a key witness in the trial. Under dispute in the case is whether Clemens mentioned using human growth hormone to Andy Pettitte.
“He 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.”
Prosecutors suggested the problem could be fixed with an instruction to the jury to disregard the evidence, but Walton seemed skeptical. He said he could never know what impact the evidence would have during the jury's deliberations "when we've got a man's liberty at interest."
Defense attorney Rusty Hardin patted an unsmiling Clemens on the back as the judge announced his decision. Clemens did not speak to reporters as he left the courtroom and made a telephone call in a private corner of the hallway. Clemens and his lawyers remain under a court gag order, so they are unlikely to comment on the development.
An Associated Press report is included in this story.