Follow by Email

Saturday, July 16, 2011


You're not
In a dramatic turn of events the federal judge presiding in the perjury prosecution of star baseball pitcher Roger Clemens declared a mistrial for prosecutorial misconduct early in the government’s presentation of its case in chief against Clemens.  Clemens is being prosecuted for allegedly making false statements in testimony before a Congressional committee investigating the use of performance-enhancing drugs in major league sports.  He faces a maximum of 30 years imprisonment if convicted.  Judge Reggie B. Walton of the United States District Court for the District of Columbia, where Clemens was being tried, issued his mistrial ruling when the prosecution displayed to the jury evidence that the judge had specifically ruled was inadmissible in the trial.   It remains to be seen whether or not Clemens may and will be re-tried.

In his sworn testimony before the Congressional Committee Clemens denied using PEDs.  Federal prosecutors allege that this testimony was false, and they indicted Clemens for perjury and related offenses.  The Government is relying substantially in the case on the testimony of former Clemens friend and teammate, Andy Pettitte, who has alleged that Clemens admitted to him that he had used PEDs, in contradiction of Clemens’s Congressional testimony.  The disputed evidence at trial was an affidavit (a written sworn statement) submitted by Pettitte’s wife in which she stated that Petttite had told her of the alleged admission to him by Clemens.
Before the trial began the judge had agreed with Clemens’s defense lawyers, Rusty Hardin and Michael Attanasio, that the statement by Pettite’s wife was hearsay and as such was inadmissible in the criminal trial.  Accordingly, the judge had forbidden not only the introduction of that affidavit at trial but also any mention of it to the jury. The judge also had granted earlier defense requests to bar any prosecution reference to other prominent athletes using PEDs, agreeing that such references would threaten to make the jury more likely to convict Clemens, invalidly, from guilt by association.  Yet prosecutors did refer to such other alleged PED users in their opening statement.  That drew a rebuke from Judge Walton, but he allowed the trial to continue after delivering a cautionary, corrective instruction to the jury.


However, when the Government violated Walton’s second ruling, regarding the affidavit of  Pettitte’s wife, the judge angrily stopped the proceedings, discussed the matter with counsel outside the presence of the jury, and then declared a mistrial and dismissed the jury, ending this prosecution of the case.  He stated, “I think Mr. Pettitte’s testimony is going to be critical as to whether [Clemens] goes to prison”.  Judge Walton, an appointee of President George W. Bush, complained that "government counsel [should not] do just what government counsel can get away with doing.”  He stated that “a first-year law student” would know not to do what the Government did here, and stated, “we’ll never know what impact that has had on how this jury ultimately decides this case when we’ve got a man’s liberty at interest.  I’m very troubled by this.  I mean, we have expended a lot of government money to reach this point. * * * I don’t see how I can un-ring the bell.”

Walton rebuffed the prosecutors’ request to submit written briefs on the issue:

You’re not going to be able to convince me.  Because if this man got convicted from my perspective, knowing how I sentence, he goes to jail.  And I’m not going to, under the circumstances, when this has happened,, put this man’s liberty in jeopardy.  He’s entitled to a fair trial; in my view he can’t get it now.  And that was caused by the government.


Judges often refuse to order a mistrial in such circumstances but instead often provide a cautionary instruction to the jury (e.g. to “ignore” the improperly introduced evidence) and then allow the trial to proceed.  Such cautionary instructions are often criticized based on the perceived improbability that jurors can truly disregard such matter in their deliberations once they have heard or seen it—or, as Judge Walton put it, that they can “un-ring the bell” of the introduction of the evidence.  Walton’s ordering of a mistrial seems clearly to indicate a substantial irritation by him with this the second major misstep of prosecutors at the outset of the trial.  One could also wonder whether it may suggest a skepticism of or dissatisfaction by Walton with the quality of the underlying government's case more broadly.


The Government-caused mistrial comes after three years of preparation of the case against Clemens (and at least seven years after the larger investigation began) a process involving scores if not hundreds of Government personnel.  It now leaves the issue of whether Clemens may and will be tried again under the indictment or whether he now may escape ultimate prosecution altogether, e.g., on the basis of the Constitutional doctrine of “double jeopardy”.  That doctrine arises from the Fifth Amendment of the U.S. Constitution, which provides that "[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb".  Walton explicitly wondered about its application in this case and set a hearing on the matter for September.  While it is said that “jeopardy attaches”, to start the application of this doctrine, when the jury is sworn and seated in a criminal jury trial, the application of the doctrine is uncertain where a prosecution ends not in a verdict but in a mistrial.  It is possible, though perhaps not likely, that Judge Walton will conclude that the government actions were intentional and therefore will bar a retrial of Clemens.  It is also possible, though probably even less likely, that the Justice Department will seek to prevent the federal prosecutors from re-trying the case against Clemens.  Probably the most likely result is a retrial.

ROGER C. WILSON represents clients in federal and state criminal and civil trials trials, and in other and federal enforcement matters.  He has represented an individual testifying before Congress in connection with the savings and loan situation, and he has participated in the representation of a foreign government in connection with a Congressional subpoena for sensitive documents provided by that government to the United States Executive Branch in a cooperative law enforcement activity concerning the scandal-ridden Bank of Credit and Commerce International or BCCI.