Mistrial leaves Clemens case hanging by a thread
WASHINGTON – To most who follow baseball or at least find themselves caught in the cyclone frenzy of the New York Yankees, Andy Pettitte(notes) is seen as a good and decent man. Andy Pettitte is religious, they say. Andy Pettitte is pure. Andy Pettitte cannot tell a lie. When he admitted to Congress that he took performance-enhancing drugs he said he was confessing to his misdeed because in the end he would have to answer to God.
So when Pettitte said Roger Clemens told him he had used HGH, almost everybody who watches the game believed him because, after all, he was Andy Pettitte.
In the perjury case against Roger Clemens, already buttressed by used steroid-laced needles and used cotton balls covered with Clemens' blood and DNA, there was always honest Andy. He gave legitimacy to the slimy characters and drug dealers who pointed their fingers Clemens' way.
But the jury in this case did not know Andy Pettitte. Most of the 10 women and two men who sat in judgment of Clemens admitted during jury selection that they had barely heard of Clemens, let alone Pettitte. One prospective juror told Clemens' attorney she "wouldn't know Roger Clemens if he was sitting right next to you," which, in fact, he was.
They were middle-aged and mostly African-American. They lived for most of their lives in a Washington, D.C. that didn't have baseball and when a team did arrive it was sold to fans in the suburbs. Several liked football. A few talked about basketball. None seemed to have a thought about Andy Pettitte.
This is why Assistant U.S. Attorney Steven Durham must have felt compelled to push. He had Pettitte. He had the one man baseball fans believe in the steroid frenzy. But he needed to get the jury to trust Pettitte the way most baseball fans already do. And late Thursday morning, on the second day of Clemens' trial, he stepped too far.
How else do you explain this? How else can a blunder as monumental as the one made by Durham make any sense? Why else would a diligent, seasoned federal prosecutor be so bold or so naïve as to allow an affidavit from Pettitte's wife, Laura, to be read into the record when the judge, Reggie Walton, strictly prohibited it? Did he think he could slip her words before the jury and receive only an admonishment from the judge in return?
We will never know because the gag order placed by Walton before the trial still applies. The judge obviously feels the possibility of double jeopardy exists – meaning Clemens may be immune from further prosecution – since he set a hearing for Sept. 2 to discuss the option. Even if a second trial occurs, it probably won't happen until winter since Walton has said in the past his autumn was booked. That would mean the trial that on Wednesday seemed like such a slam dunk for the government will likely not start until 2012. That is if it starts at all.
And to think it was Clemens' attorney, Rusty Hardin, with all his hokey Texas charm, who was supposed to be the buffoon here.
Instead, as people stood around courtroom 16 of the E. Barrett Prettyman Federal Courthouse in disbelief, it was Hardin who gently rubbed the arm of the rumpled Durham. The prosecutor looked dejected. He had his hands on his hips and looked at the floor undoubtedly replaying the previous 40 minutes in his mind.
It had been such an innocuous morning in the trial as the government slowly built its case brick by brick. The testimony was so tedious that Walton reached under his robe, produced a cell phone and appeared to be checking messages. A longtime House staffer sat on the witness stand while Durham showed tapes of Clemens' ill-fated 2008 appearance before Congress on a screen. An exchange between the pitcher and Maryland Congressman Elijah Cummings appeared. Cummings mentioned the affidavit from Pettitte's wife in which she said her husband told her in the late 1990s that Clemens had used performance-enhancing drugs.
Walton, recognizing a direct violation of his order, immediately asked for the video to be stopped and asked for the attorneys to approach the bench.
While they talked, the video remained frozen on the screen, with the damning words of Pettitte's wife glaring at the jurors who had little else to do but read them. A recess was called. The jury was finally ushered out of the room. But the damage had been done.
Hardin solemnly asked for a mistrial. Walton nodded and said: "I don't see how I unring the bell" – a reference to the words still on the screen. A few minutes later Walton uttered the words he could never have imagined saying just minutes before.
This was a mistrial.
To make things even worse for the reeling government attorneys, Walton said he considered Pettitte to be "a critical witness." He said it would be "a lot harder task to undermine the credibility of Andy Pettitte." He continued by saying he believed the trial was "going to be difficult for Mr. Clemens" and said that given his reputation for sentencing hard, Clemens' "freedom was at stake" and he wanted to give as fair a trial as possible. Using Laura Pettitte to make Andy Pettitte seem even purer was, to Walton, unfair.
Durham meekly tried to get Walton to change his mind, telling the judge he could give strong instructions to the jury to ignore Laura Pettitte's words, but Walton shook his head. It was over.
A few minutes later, Clemens and his lawyers walked. They burst through the west doors and started walking across a courtyard. Clemens did not look happy. Hardin wore a smile and an all-white suit that made him look like he was about to lead Clemens to heaven.
It turns out the pitcher only wanted to go to Texas.
"I'm going to walk home now," he said icily to the photographers gathered before him.
But this was too big. Nobody was leaving. Fans moved in with pictures and baseballs to autograph. Television reporters threw out questions. Clemens kept moving.
A cameraman jumped on a planter to get a better shot but slipped and fell down, his camera clattering into the dirt. Another cameraman, moving backward, crashed into a different planter, tumbling to the concrete.
Someone asked Hardin if he thought the judge would declare double jeopardy and Hardin laughed.
"I wouldn't even hazard a guess," he said.
They moved to the street and the photographers followed along. Hardin wondered if they walked all the way to the Washington Monument, would the reporters and camera people follow? The answer was yes. Soon they wound up outside the Newseum, the museum of news which has a restaurant on the bottom floor.
"We can go in the News-eeeeuuuum," Hardin suggested to Clemens.
Clemens wanted nothing to do with any Newseum.
They pushed across 6th St. NW until up at Indiana NW there beckoned the welcome awning of an Au Bon Pain. Clemens rushed for it. Hardin followed. Outside a man reeking of alcohol and holding a cane shouted at all the reporters and cameramen and photographers to: "just leave the man alone!"
He kept screaming this.
"Leave the man alone!"
And on the day the government blew its chance at the biggest steroid conviction yet, those might have been the most profound words.
"Leave the man alone!"
The government has spent millions to investigate Clemens with the hope of only a few months in prison. In the end he walked to Au Bon Pain while Assistant U.S. Attorney Steven Durham was left with an egg sandwich on the side of his face.
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