Judge declares mistrial in Clemens perjury case

WASHINGTON Fri Jul 15, 2011 1:32am EDT

1 of 7. Former Major League Baseball pitcher Roger Clemens and his attorney Rusty Hardin (R) leave the federal courthouse in Washington after the judge declared a mistrial, July 14, 2011.

Credit: Reuters/Yuri Gripas

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WASHINGTON (Reuters) - A judge declared a mistrial on Thursday in the perjury trial of baseball pitching great Roger Clemens because the lead prosecutor gave jurors information that had been barred from the courtroom.

Judge Reggie Walton was furious at prosecutor Steven Durham for introducing material in a video that appeared to bolster the credibility of a future witness, Clemens's former teammate Andy Pettitte, and referred to Pettitte's wife, Laura, saying she had been told Clemens used human growth hormone.

"If this man is convicted, knowing how I sentence, he goes to jail," Walton said. "He is entitled to a fair trial. In my view he cannot get one."

The mistrial was a major setback for the U.S. government, which spent more than a year preparing the case and was only in its second day of presenting its evidence with the prosecution's third witness on the stand.

After the mistrial declaration, Clemens walked to a nearby sandwich shop, signing autographs along the way.

"He's eager to get back to his family as soon as he can," said his lawyer Rusty Hardin, declining further comment because Walton has issued a gag order in the case.

Clemens, 48, whose career spanned 24 years playing for four teams and winning the Cy Young Award for best pitcher seven times, was fighting charges that he lied to Congress in 2008 when he denied taking steroids and human growth hormones.

Walton said the parties would have to discuss whether retrying Clemens would violate the constitutional protection against double jeopardy, which bars an individual from being tried twice for the same offenses. A hearing on that issue was set for September 2.

Durham had pressed Walton to reconsider or instead instruct the jury to disregard the information presented in a video of the 2008 congressional testimony by Clemens to the House of Representatives' Committee on Oversight and Government Reform.

"You're not going to be able to convince me," Walton said in rejecting the request.

A spokesman for the prosecutors declined to comment.

CLEMENS CAUGHT "A VERY LUCKY BREAK"

A former federal prosecutor who previously worked with Durham said Clemens caught "a very lucky break" with the mistrial declaration because that rarely happens.

"In most trials good-faith mistakes are made on both sides and rarely result in consequences of this magnitude," said Glen Donath, partner at Katten Muchin Rosenman LLP. "I think there's very low probability that double jeopardy will bar re-trial."

In admonishing Durham, Walton said the prosecutor had violated his order in his opening statement as well as by referring to certain other players who took steroids, all of which he had ruled inadmissible.

"A first-year law student would know that you can't bolster the credibility of one witness with clearly inadmissible evidence," Walton said, raising his voice in anger at Durham. "I don't see how I unring the bell."

The video showed Democratic Representative Elijah Cummings during the steroids hearing making references to Pettitte, who admitted to using the drugs, and references to conversations the ballplayer said he had with his wife about Clemens regarding human growth hormones.

Walton halted the video tape as it was playing, and called the lawyers to the bench to discuss the violation of his order, leaving for several minutes the video with the text of Cummings's remarks frozen on the screen for jurors to see.

The judge was concerned Cummings's remarks were improperly bolstering the credibility of Pettitte, calling him a "critical witness" and one who would be hard for Clemens to undermine in such circumstances. He was also upset that Cummings, in the video, read aloud an affidavit by Laura Pettitte.

"Andy told me he had a conversation with Roger Clemens in which Roger admitted to him that he had used human growth hormones," were the words of Laura Pettitte highlighted on the screen in front of the jury.

Prosecutors have promised several witnesses to prove Clemens took the performance-enhancing drugs and then lied about it, including Pettitte and his former trainer Brian McNamee. Defense attorneys have branded McNamee a liar.

Clemens has said Pettitte, once a close friend, had misremembered and misheard the conversation that was relayed to his wife. Walton had previously excluded any initial references to Laura Pettitte.

(Additional reporting by Molly O'Toole in Washington; editing by Todd Eastham and Bill Trott)

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