The perjury trial of onetime pitching ace Roger Clemens has blown up into a mistrial. On just the second day of testimony, federal Judge Reggie Walton ruled that prosecutors had indelibly tainted Clemens' ability to get a fair trial by exposing the jury to inadmissible evidence.
Still unresolved is whether prosecutors will get a second chance at making their case in front of another jury.
A furious Judge Walton raised his usually calm voice in anger as he realized that prosecutors had failed to redact video and transcripts shown to jurors and failed as well to turn off the monitors in the jury box when he called lawyers to the bench. As a result, for several minutes, jurors could see quotes from the wife of pitcher Andy Pettitte, Laura Pettitte, saying her husband had told her Clemens had admitted to him that he used human growth hormone. The judge had previously ruled that Laura Pettitte could not testify because she had not herself heard the conversation, and Clemens has said Andy Pettitte either misheard or misunderstood it.
Fair Trial 'Impossible'
"I do not see how I can un-ring this bell," the judge said. Because the prosecutors broke the rules, "the ability of Mr. Clemens to get a fair trial with this jury would be very difficult, if not impossible."
The trial meltdown occurred while the prosecution was playing video of Clemens' congressional testimony, using a passage where Rep. Elijah Cummings (D-MD) berated Clemens, praising the honesty of Pettitte and suggesting that Laura Pettitte's affidavit was evidence that Pettitte's recollection of his conversation with Clemens was correct. When Clemens replied that Pettitte had misheard or misremembered the conversation, Cummings responded, "If that was true, why would Laura Pettitte remember Andy telling her about the conversation?" Judge Walton, apparently alarmed by the inclusion of inadmissible evidence, interrupted the proceedings to call the lawyers to the bench.
And after several minutes, Clemens' lawyer, Rusty Hardin, pointed out that the video had remained on the screen in front of the jurors with a transcript of Laura Pettitte's comments frozen at the bottom of the screen.
The gaffe was compounded by the fact that Judge Walton had previously instructed the lawyers to redact any reference to Laura Pettitte's statements.
At this point, the judge sent the jury out of the courtroom and his voice rose in exasperation and anger. The judge said it was the second time that the prosecution had disregarded his orders: On Wednesday during opening statements, the prosecutor had told jurors he would call a series of baseball players to talk about their use of steroids and HGH. But the judge had previously said he would not allow that testimony because it would subject Clemens to guilt by association.
Wednesday's miscue was corrected by the judge instructing the jury to disregard what the prosecutor had just said.
Thursday's error, however, was much worse, according to Judge Walton.
Calling Andy Pettitte a critical witness, Walton said, "A first-year law student would know you can't bolster the credibility of one witness with clearly inadmissible evidence."
The prosecutors tried to salvage the case, contending that the problem could be fixed with an instruction to jurors to disregard what they had seen. Defense lawyer Hardin at first seemed to agree; only later, pressed by the judge, did he ask for a mistrial.
But the judge was clearly upset, at that point saying, "I don't think I can un-ring this bell," and he left the bench saying he wanted to consult with colleagues about what to do.
When he returned, he called the jurors in, thanked them and declared a mistrial.
"If this man got convicted, he would go to jail," Walton said. "There are rules that we play by, and those rules are designed to make sure both sides receive a fair trial." These ground rules are critically important when a person's liberty is at stake, Walton added.
It is unclear whether a new jury will be selected or if re-prosecution is precluded under the double jeopardy rule, which protects criminal defendants from being tried twice for the same crime.
Walton set Sept. 2 for a hearing on whether the prosecution can get a second bite at the apple. Normally a mistrial does not prevent a second trial. But the Supreme Court has said there are exceptions to that rule — when the prosecution deliberately provokes a mistrial. Experts say that exception is analogous to the rules for baseball pitchers when they hit a batter. If the errant pitch is a mistake, the pitcher remains in the game. If it was intentional, he is thrown out. And as in a baseball game, it will be up to the umpire — here the judge — to make the call.