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Judge poised to make call on Clemens

New trial or no trial for ex-Sox pitcher

Roger Clemens left federal court with lawyer Rusty Hardin in Washington on July 14 after the judge declared a mistrial. Today the judge decides whether there will be a new trial. Roger Clemens left federal court with lawyer Rusty Hardin in Washington on July 14 after the judge declared a mistrial. Today the judge decides whether there will be a new trial. (Jonathan Ernst/Reuters)
By Shira Springer
Globe Staff / September 2, 2011

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When lawyers in the Roger Clemens perjury case last appeared in a Washington, D.C., courtroom, Judge Reggie B. Walton declared a mistrial, scolding prosecutors for introducing off-limits evidence.

The prosecution, he said, had erred in showing jurors a video that mentioned a conversation between former Yankees pitcher Andy Pettitte and his wife, Laura, concerning Clemens. “A first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,’’ the judge declared.

The error was egregious enough to prompt a mistrial. Today, the judge will decide whether it was intentional enough to end the case entirely.

As the lawyers reassemble at the E. Barrett Prettyman United States Courthouse in Washington, Walton will hear arguments from both sides, then determine whether to dismiss the indictment or schedule a second trial.

To make that determination, the judge must address a central question: Was the prosecution’s “error’’ really an intentional ploy to end the trial? The defense suggests that the prosecution was not happy with pretrial rulings and how the trial began - starting with what evidence was admissible and jury selection - and wanted to engineer a mistrial so it could get a fresh start with a second trial. The prosecution denies that assertion.

“The judge’s decision is analogous to an umpire’s decision when a batter gets hit by a pitch,’’ said former federal prosecutor Michael N. Levy. “The umpire only ejects the pitcher if he concludes the pitcher deliberately threw at the batter. That’s essentially the ruling Judge Walton has to make. He has to decide if the prosecutors deliberately intended to create a mistrial. If they did, then the prosecutors get thrown out of the game. If not, the game continues and there’s a new trial.’’

The former Red Sox pitcher is charged with lying to Congress when he denied using performance-enhancing drugs during his record-setting 24-year career. In the trial, the government planned to present physical evidence and testimony indicating that Clemens owed his longevity and late-career success, in part, to steroid use.

If retried and convicted, the seven-time Cy Young Award winner could be sentenced to 15 to 21 months in prison.

Legal specialists predict Clemens will stand trial a second time. They argue that the trial was not far enough along - barely 24 hours after opening statements - for the prosecution to intentionally scuttle the proceedings and seek to start over.

“It would be hard to make the case that the prosecutors deliberately did this so they would have a second bite at the apple,’’ said David Rossman, a Boston University School of Law professor and criminal defense attorney. “I’d be surprised if the judge found a legal doctrine that allowed him to say the government cannot proceed. If the government is still interested in prosecuting Clemens, I think eventually they’ll get their shot.’’

At the end of July, the defense filed a motion to prohibit retrial and dismiss the indictment “on the grounds of double jeopardy.’’ The prosecution filed a response in mid-August, claiming Clemens “seeks to gain an unwarranted windfall’’ from an “inadvertent error.’’

In court today, Walton probably will ask the attorneys questions, delving deeper into how the prosecution came to introduce inadmissible evidence and how the defense can infer intent.

Walton may make a preliminary ruling in open court today, and if he rules in favor of holding a second trial, the parties may discuss a start date.

In its motion, the defense charged that the prosecution “triggered double jeopardy by deliberately defying a pretrial order precluding use of prejudicial hearsay.’’

The hearsay evidence at issue - the conversation between the Pettittes - appeared in video of Clemens testifying before the House Committee on Oversight and Reform in February 2008. In that video, Representative Elijah Cummings, Democrat of Maryland, referred to a conversation between the Pettittes, one in which Andy tells Laura that Clemens had admitted using human growth hormone (HGH). The defense also points out that the prosecution committed “evidentiary transgressions’’ in questioning a witness and in its opening statements when it mentioned other players’ steroid and HGH use.

The defense motion to dismiss all charges against Clemens maintains that “the Government’s conduct here was no accident,’’ noting that Laura Pettitte’s hearsay statements and evidence of other players’ steroid use were “hotly-contested pretrial issues.’’ Furthermore, the defense contends that “by the time the Government provoked the mistrial, its highly experienced counsel had suffered a series of setbacks that cast doubt on the case against Mr. Clemens.’’

A second trial, the defense argued, would be unfair, allowing the prosecution to improve upon jury selection and its strategy.

“The defense is essentially asking for the government to be permanently barred from ever trying Roger Clemens on these alleged federal crimes because a snippet of a video tape was played before the jury,’’ said Levy, now a Washington criminal defense lawyer at Bingham McCutchen. “That’s a tough mountain to climb.’’

In its response to the defense motion, the prosecution goes to great lengths to note that it “vigorously opposed a mistrial’’ and that its “case was - and is - strong.’’ The prosecution characterizes what happened as a mistake - “an oversight’’ - not intentional misconduct.

The prosecution also points out that when the problematic video clip was played for the jury the defense did not object.

Now Walton, a no-nonsense judge with a strong distaste for wasting time and money, must determine why the prosecution made such a glaring error, and how to insure the Clemens case proceeds fairly. In the past, Walton has not been afraid to make tough rulings or hand down tough sentences.

“One of the things about this particular judge is there’s a lot of courage to him,’’ said Robert Bloom, a Boston College Law School professor who teaches criminal procedure. “There’s a lot of publicity associated with this case, a lot of time and effort put into it by the government. Unfortunately, sometimes that weighs into a judge’s decision. But I don’t see that affecting this judge. He will go wherever the evidence leads him.’’

Shira Springer can be reached at springer@globe.com.

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