WASHINGTON – The judge in the Roger Clemens case declared a mistrial Thursday morning which may end the government's prosecution of the pitcher for allegedly lying to Congress.
The ruling from U.S. District Court Judge Reggie Walton came during the morning of the trial's second day when government prosecutors showed a clip from U.S. Rep. Elijah Cummings in the infamous 2008 testimony Clemens gave to Congress. The clip showed Cummings reading an affidavit from Andy Pettitte's(notes) wife Laura in which she remembered her husband telling her Clemens had admitted using steroids to him in the late 1990s. Before the trial Walton ordered that any testimony from Pettitte's wife was inadmissible and by showing the clip Thursday, the jury was exposed to evidence it should not have seen. Walton said, "I don't see how I unring the bell."
The case against Clemens might be done for good. Walton said double jeopardy might apply in this case, meaning Clemens could possibly not be charged again. A hearing on the matter has been scheduled for Sept. 2 and even if Walton agrees to a second trial it likely won’t start until next winter.
Walton raged at Assistant U.S. Attorney Steven Durham for not only playing the video but highlighting text underneath that included the words of Laura Pettitte's affidavit. Defense attorney Rusty Hardin pointed out to Walton that the words remained on the screen for several minutes and would be impossible for jurors to ignore even as Walton ordered the tape stopped and called the lawyers to the bench for a conference.
"I'm afraid we have to ask for a mistrial," Hardin said once the jury had been removed from the room.
Walton pondered the request then grew angrier as he considered the potential problem. He said the affidavit "bolstered the credibility of Andy Pettitte's testimony who in my view is a critical witness."
The jury, made up of 10 women and two men, does not seem to be knowledgeable about baseball. Many said they knew little about the game in jury selection and therefore probably know little about Pettitte. It has long been believed in baseball circles that the deeply religious Pettitte would be a brilliant witness against his friend and former teammate Clemens because he is considered so trustworthy. But a jury that does not know Pettitte wouldn't be as swayed by his words. The government needed to bolster Pettitte's credibility as much as it could.
Clemens leaned back in his chair, showing no emotion as Walton deliberated his decision. He has been charged with six felony counts including lying to Congress, obstruction of justice and perjury.
"I think a first-year law student would know you can't bolster the credibility of a witness with clearly inadmissible evidence," Walton said as he scolded Durham.
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- Roger Clemens
- Andy Pettitte