Government Errors, Judge Hits, Roger Clemens Runs

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

clemons body.JPG

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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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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