Government Errors, Judge Hits, Roger Clemens Runs

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The 11-time all-star pitcher may be off the hook, but only thanks to an embarrassing mistake by federal prosecutors

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Just like that it's over.

U.S. District Judge Reggie Walton, who I told y'all a week ago would brook no nonsense from the lawyers, abruptly ended Roger Clemens's federal perjury trial Thursday by declaring a mistrial based upon prosecutorial misconduct. The jurors have been sent home. The witnesses, too. And now, for the time being anyway, the famous defendant, the seven-time Cy Young Award-winner, won't have to worry about becoming a convicted felon or, worse, a prison inmate.

Judge Walton blew up the high-profile trial after concluding that federal prosecutors had unduly prejudiced jurors by showing them information on a videotape that the judge had specifically precluded from the case. Jurors were shown a portion of a 2008 Congressional hearing on steroids (the same one which got Clemens in trouble in the first place) in which the testimony of Andy Petitte's wife, Laura, was discussed. Because that information was considered inadmissible hearsay evidence, the judge had ruled before the trial that it could not be used with jurors to bolster the credibility of Petitte himself, at least at the outset of the trial. Petitte, for those of you coming late to the game, is Clemens' friend and former New York Yankees' teammate and was a key prosecution witness.

The feds couldn't even get their case-in-chief beyond the second day of trial testimony before screwing it all up

The issue of Petitte's credibility—and the way it was to be presented to jurors—first came up on Wednesday during opening statements when prosecutors made an inappropriate statement about such evidence. They were promptly scolded by the judge. And yet, one day later, prosecutors inexplicably showed jurors the videotape anyway without redacting the portion that mentioned Laura Petitte. This prompted a visibly angry judge to say in open court "we can't unring this bell" now that the jury has seen important information it was not supposed to see. "Government counsel can't do what it thinks it can get away with," Judge Walton said. "Any first year law student should know that."

For purposes of the Sixth Amendment anyway, it doesn't really matter whether federal lawyers intentionally refused to clean up their evidence ("Leave it in, maybe no one will notice") or whether it was just a stupid mistake or oversight by a member of the prosecution team. ("Wait, I thought you were going to redact the video!") Either way, Clemens' fair trial rights were violated and the judge felt compelled to act. Mistrials may be rare but they occur often in circumstances like this, where a judge believes the jury has been shown information that it wasn't meant to see and may materially influence the outcome of the trial.

Do you get the feeling that someone's head is going to roll for this at the Justice Department? I do. The feds already had come under significant criticism from many corners of the legal, political, and sporting worlds for devoting time, energy, and money prosecuting the popular athlete for allegedly lying about a performance-enhancing drug. And the Justice Department had largely answer that criticism by reminding people that lying under oath is no small matter under the rule of law. But the feds couldn't even get their case-in-chief beyond the second day of trial testimony before screwing it all up. It's no small matter either, Judge Walton reminded prosecutors Thursday by ending their case, to blow off a judge's pre-trial evidentiary rulings.

Indeed, this is a colossal and embarrassing result for the Justice Department. The feds had the stronger hand in the case and every reason to believe they would have gotten their conviction against Clemens even without the extralegal bolstering of Petitte's testimony. I mean, so pure is his reputation, I half-expected Petitte to come into the courtroom with a halo over his head. In fact, of the two main government witnesses, it was the other guy, former Clemens' trainer Brian McNamee, whose credibility and reliability may have needed a boost. So not only was this mistake costly for the Justice Department, it was also unnecessary. And I wouldn't be surprised to see an internal ethics investigation at DOJ into the circumstances surrounding this mistrial.

For the defense, on the other hand, the mistrial must seem like the memorable scene from The Natural in which the hero of the story miraculously snatches victory from the jaws of defeat. Clemens was facing one year or so in prison (my calculation) if he had been convicted by these jurors and sentenced by this judge. And the government had a very strong case against him. Now, all that is in jeopardy—as in "double jeopardy." Judge Walton has scheduled a September 2nd hearing to determine whether prosecutors may try Clemens again (even if they want to) or are barred from doing so by the rule that prohibits a defendant from being tried twice for the same crime.

Will prosecutors simply walk away from the case against Clemens? Will they even have a choice? Ask me after September's hearing. Will we ever know more about what Clemens knew or didn't know about his own alleged steroids use? Unfortunately, Thursday's murky end to the trial, just as the rest of us were about to learn the rest of the story, means those questions will linger for quite some time. I guess that's the only bit of bad news Clemens received Thursday, which just might turn out to be the first day of the rest of his life.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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