— The judge in the Roger Clemens federal perjury trial abruptly declared a mistrial on the second day of testimony, leaving government attorneys weighing whether to try again or drop the charges against the former All-Star pitcher that he lied when he testified before Congress that he never used steroids or other performance-enhancing drugs.
The government's case came apart Thursday when prosecutors violated U.S. District Judge Reggie Walton's order by inadvertently allowing the jury to view videotaped statements from a U.S. congressman discussing the credibility of one of the key witnesses against the former All-Star baseball pitcher.
Walton was livid when he realized that a video screen was left on in the courtroom while he and the lawyers privately discussed an issue away from the jury, and yet the jurors could clearly see written comments by U.S. Rep. Elijah E. Cummings (D-Md.) during a 2008 House hearing in which Clemens testified he never used steroids or human growth hormone, also known as HGH.
"Sadly, I have reached this conclusion," Walton said, ordering a mistrial.
Prosecutors asked Walton to reconsider. He refused, and instead told the government to file legal papers soon on whether they still want to prosecute the former longtime baseball star. The judge set a hearing in federal court in Washington for Sept. 2 to decide how to proceed.
In the meantime William Miller, spokesman in the U.S. Attorney's office, cited the judge's gag order against lawyers in the case speaking to the press and said prosecutors would have "no comment about the developments today."
At issue was an earlier ruling in which the judge said he would not allow outside testimony or evidence from others about the credibility of certain key witnesses, including Andy Pettitte, a former teammate of Clemens.
Yet appearing on the screen was a transcript of comments by Cummings discussing Pettitte's wife and Pettitte's credibility as one of the lead government witnesses against the seven-time Cy Young Award winner, who won 354 games in a legendary career with four teams — the Boston Red Sox, New York Yankees, Toronto Blue Jays and Houston Astros. He is one of only four major league pitchers to amass at least 4,000 strikeouts.
The government was supposed to have redacted any comments the judge would not allow, and was instructed to keep them away from the jury of 10 women and two men so as not to prejudice their deliberations.
"We'll never know what impact that will have on how this jury decides this case, when we have a man's liberties at stake," said Walton, visibly angry. "I am troubled by this. The government should have been more cautious."
He added, "I don't see how I un-ring the bell" and keep the jury from considering what Pettitte's wife said and what Cummings thought of it.
"In my view, Mr. Pettitte's testimony is going to be critical as to whether this man goes to prison, and I can't in good faith leave this case where a man's liberty is at risk when the government should have assured we are not in this situation."
Prosecutors said the error was inadvertent. But Rusty Hardin of Houston, Clemens' chief defense attorney, seized on the problem and immediately asked for a mistrial.
"I like this jury," Hardin said. "But…"
On the screen were written comments from Cummings discussing how Laura Pettitte had said her husband "told me he had a conversation with Roger Clemens and Roger admitted to him using human growth hormones." Clemens has insisted he never told Pettitte that he used HGH or steroids, even though his friend and former New York Yankees teammate has said otherwise.
Cummings, from his comments, seemed to believe Pettitte over Clemens.
Cummings' comments were then addressed to Clemens, and his sworn statements that he never told Pettitte he used the drugs.
"If that were true," Cummings' comments continued on the video, "why would Laura Pettitte remember her husband telling her about that?"
Clemens had been charged with perjury, obstruction of justice and making false statements in the latest criminal trial dealing with major league baseball players who used steroids and other performance-enhancing drugs. If convicted, he faced up to 30 years in prison and a $1.5 million fine.
Before ending the trial, the judge left the bench to confer about what to do. But he severely admonished the prosecutors.
"Government counsel doesn't do just what government counsel can get away with doing," he said. "And a first-year law student knows you can't alter the credibility of one witness with clearly inadmissible evidence."
A chagrined judge then dismissed the jury.
"Ladies and gentlemen," he told the jurors, "we have taken about a week out of your life. We expended a lot of your taxpayers' money to reach this point. Unfortunately there are rules we play by and those rules are designed to insure that both parties receive a fair trial."
As he left the courthouse, Clemens waved away questions from reporters on whether he was relieved the trial ended so quickly. Though he also appeared beleaguered, he happily signed autographs for a small group of fans who had gathered outside.
Hardin, his attorney, said as he was leaving: "I would have liked to have gone forward. But we just didn't have a choice."