Commentary

Second Roger Clemens trial looks likely

Originally Published: August 5, 2011
By Lester Munson | ESPN.com

Just so you know, I'm not always focused on the view from my Courtside Seat. I have a life. Really. For example, sometimes I watch things other than courtroom dramas. Like game shows. Say, "Jeopardy!" ("Thank you, Don Pardo. Thank you, friends. Now let's play 'Jeopardy!'") My favorite part is Double Jeopardy, where, as Art Fleming (you youngsters will remember the emcee as Alex Trebek) used to say, "Those dollar figures really can change!" So I'm taking "Sports and the Law" for $60, Art. It ended in a mistrial last month. Got it! What is the Roger Clemens perjury case? Seems like today, maybe we ought to start with a question rather than an answer ...

Was it accidentally on purpose?

It's a tall order, and it won't be easy. The Roger Clemens legal team, attempting to exploit a government blunder and obtain a ruling that would prohibit a second trial, must find a way to show that the prosecutors intentionally sought the mistrial that abruptly ended the first proceeding almost as soon as it started.

In their motion to keep a second trial from happening, Clemens' attorneys, led by Houston's Rusty Hardin, patch together various facts and circumstances that supposedly indicate a scheme on the part of the prosecutors to disrupt the original trial. But the motion fails to answer the most important question: Why would seasoned prosecutors who were doing well in the trial's early stages purposely make a risky decision to cause a mistrial?

Clemens' lawyers toss around words such as "misconduct," accuse the prosecutors of "shirking their duty," and assert that the "government's conduct was no accident." If any of these accusations are true, the Clemens prosecution will be dead. There will be no second trial because of the "double jeopardy" clause of the U.S. Constitution that prohibits "repeated prosecutions for the same offense," according to one of the most important U.S. Supreme Court decisions on the issue.

[+] EnlargeRoger Clemens
AP Photo/Manuel Balce CenetaWas the mistrial in July the end of Roger Clemens' legal problems, or just a temporary reprieve?

The theory behind the Clemens claim is that the prosecutors "suffered a series of setbacks that cast doubt on the case."

It's a theory. But that is all it is. And the Clemens lawyers need more than a theory for their motion to succeed.

Until the presentation of the video exhibit that prompted U.S. District Court Judge Reggie Walton to stop the trial, the only setbacks the prosecutors suffered were on a couple of routine rulings that happen in any trial featuring aggressive and resourceful lawyers such as Hardin and prosecutors Steven Durham and Daniel Butler.

On the eve of the trial, Judge Walton told the prosecutors they were not permitted to present other ballplayers who had obtained HGH and steroids from former Clemens trainer Brian McNamee.

Was that a "setback?" It might have been a bit of a surprise in that in identical circumstances in the Barry Bonds prosecution, U.S. District Judge Susan Illston allowed prosecutors to use testimony that Bonds trainer Greg Anderson had provided drugs to other ballplayers. But was it a "setback?" No. It is the kind of thing that happens in the pre-trial skirmishing in any prosecution.

There was nothing remotely resembling a setback for the prosecution in the selection of the jury. Although the Clemens team hints in its court papers that it somehow gained an edge in the process (they describe it as "Clemens' preferred jury"), the lawyers offer no specific reason the jury was in any way favorable to their client. Most media observers agreed that neither side appeared to have gained an advantage.

The only surprise in the opening statements was how brilliantly prosecutor Durham presented the evidence in support of the charge that Clemens lied to the U.S. Congress. Hardin objected to Durham's mention of those other ballplayers, and Judge Walton told the jury to disregard those references -- another routine event in any trial.

As Durham concluded his remarks to the jury, my impression was that the government's case against Clemens was stronger than I'd expected it to be.

[+] EnlargeAssistant U.S. Attorney Steve Durham
AP Photo/Alex BrandonAssistant U.S. Attorney Steve Durham and other prosecutors bungled the first trial, but it's difficult to believe they did it on purpose.

As the prosecutors presented their first important witness, Phil Barnett, the former staff director of the committee that listened to Clemens' denials of HGH and steroid use, they were routinely building the government's case.

If you were scoring the trial round-by-round, the prosecutors were ahead on points up to the time when they played the video excerpt of Clemens' committee testimony. Which is what caused the mistrial.

So the government was performing well, laying out its evidence in an organized and occasionally dramatic fashion. And if the prosecutors were doing well, why would they deliberately provoke Judge Walton into declaring a mistrial?

The Clemens lawyers argue, as they must, that the prosecutors were losing and desperately needed a "do-over" in their attempt to convict Clemens. Things were going so badly, the Clemens team says, that the prosecutors on the second day of the trial already had no hope of obtaining a conviction.

It is the only argument that they can make. If the presentation of the video with the material that trespassed into forbidden territory -- information about a statement from Andy Pettitte's wife -- was simply an innocent error, the Clemens lawyers have no hope of prohibiting a second trial.

In the two days of trial that I watched from a seat 10 feet away from Clemens and his lawyers, the prosecutors were never in trouble. The last thing the prosecutors wanted was a mistrial and problems of double jeopardy.

The more plausible reason for the failure to remove the impermissible material from the video is that an understaffed prosecution team was desperately trying to prepare 45 witnesses and nearly 400 exhibits, and the task of editing the video was simply not done. It isn't at all likely that it was part of a grand scheme. Rather, it was probably an innocent and careless error.

Clemens' attorneys even acknowledged the prosecutors' last-minute efforts to comply with the requirements of trial preparation. Michael Attanasio, a San Diego lawyer on the Clemens team, told the judge during the mistrial drama that the prosecutors had apologized to him for late, pre-trial submissions and told him that "their resources were limited."

A further indication of a prosecution team overwhelmed and understaffed is its failure to obtain the manuscript of McNamee's autobiography until the eve of the trial. Only when the defense issued a subpoena for the McNamee material did the prosecutors join in the request and begin to read what might become an important piece of evidence about McNamee's veracity.

The failure to edit a video to comply with a judge's ruling made on the day before the trial began is barely within the definition of "prosecutorial misconduct."

[+] EnlargeRoger Clemens & Rusty Hardin
AP Photo/Manuel Balce CenetaClemens and his lead attorney, Rusty Hardin, are trying to convince the judge he should drop the case altogether.

As Judge Walton decides whether the blunder was deliberate or accidental  the next court date is Friday, Sept. 2 -- he may wish to weigh this case against real prosecutorial misconduct that occurred two years ago in the same courthouse.

In the prosecution of the late Sen. Ted Stevens of Alaska, colleagues of Clemens prosecutors Durham and Butler deliberately withheld from Stevens' attorneys notes about an interview of a star witness that clearly showed the witness was lying at the trial. It was one of many missteps for prosecutors in the Stevens trial, deliberate tactics that caused senior officials of the U.S. Department of Justice to admit that they were guilty of misconduct and that the case must be dismissed.

As Judge Walton was deliberating over the possibility of a mistrial in the Clemens prosecution last month, he told the lawyers and the audience that he would consult with "my colleagues." He then went into his chambers for 36 minutes and returned to the courtroom to declare the mistrial.

Did he consult with U.S. District Court Judge Emmet Sullivan, who called the conduct of the Steven prosecutors "outrageous" and held them in contempt? Sullivan is two floors away from Walton in the same courthouse. Possibly.

Does the blunder in the Clemens case on the second day of the trial compare with the egregious misconduct in the Stevens case that produced a wrongful conviction and travesty? Probably not.

The ceiling at 'The Cell'

After nine years of work for the Chicago White Sox and a string of superior evaluations of her performance, Debra Theobald had every reason to expect to be promoted to the position of manager of premium seating, an important job in the organization that could lead to further advancement.

A supervisor told Theobald, according to a lawsuit she filed last week, that her "promotion was imminent and it was a done deal."

But instead, the lawsuit claims that team owner Jerry Reinsdorf and his staff in February 2010 reached down into a customer service phone bank, found a man who had been taking "incoming calls for tickets" for two years, and gave him the job.

For Theobald, it apparently was the final indignity in a series of actions that proved to her that the White Sox had "intentionally not provided women equal employment opportunities for promotion to upper non-uniformed positions."

[+] EnlargeJerry Reinsdorf
AP Photo/Nam Y. HuhWhite Sox owner Jerry Reinsdorf faces a gender discrimination suit about the club's hiring and promotion practices.

This was not the first time the Sox had refused to promote her, but it was the last time. She resigned in June 2010 and made a complaint to the Illinois Department of Human Rights. After a review of her situation, the department told her that she had a "right to sue." And that's what she did.

In her lawsuit, filed in the Circuit Court of Cook County, Theobald makes a powerful argument that Reinsdorf operates the team with a "glass ceiling," refusing to promote women into any important jobs and relegating them to "dead-end positions with no chance for advancement."

She lists the 11 executive positions at the top of team's organizational chart and asserts that all are occupied by men. She shows that the chain of command that governed her work was all male. And she accuses White Sox executive Tom Sheridan of giving her a 2 percent annual raise when males in similar positions were awarded higher raises.

There is little doubt that Theobald is correct in her assertion that there are differences in employee salary increases. As part of her claim in the Illinois Department of Human Rights, she obtained salary records that confirm more favorable treatment of male employees.

If Theobald can prove her allegations, the White Sox have a serious problem. She is making her claim under the Illinois Equal Pay Act and the Illinois Human Rights Act, laws that are designed to punish gender discrimination.

In the lawsuit filed for her by her father, attorney Edward Theobald, she demands that all public subsidies for the team be terminated. The human rights law expressly provides that a court can end these subsidies if it finds an employer guilty of discrimination. That would be a serious blow to the White Sox, who play in a stadium (U.S. Cellular Field) owned, maintained and subsidized by the Illinois Sport Facilities Authority.

The White Sox and Reinsdorf refuse to comment on the lawsuit, which is no surprise. But it will be a big surprise if the franchise doesn't hire a few women for top jobs in the near future. The team's best hope of defeating Theobald's claim and avoiding a complicated mess in the operation of the ballpark is to show the court that the club has made changes in its hiring and promotion of women.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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