Commentary

Why Roger Clemens faces another trial

Originally Published: September 3, 2011
By Lester Munson | ESPN.com

A federal judge in Washington, D.C., decided Friday to give prosecutors a second chance to present their evidence that Roger Clemens lied to the U.S. Congress. The prosecutors' first attempt ended in a mistrial July 14, when they presented evidence that the judge had barred from the trial. The second trial is now scheduled to begin April 17, 2012. Friday's ruling raises questions about the prosecutors' conduct, the reasons for the judge's decision and the prospects for the second trial. Here are some of the questions and their answers:

If the prosecutors violated a court order and presented evidence that had been barred from the trial, why did the judge give them a second chance?

Roger Clemens
AP Photo/Manuel Balce CenetaRoger Clemens has another chance now to clear his name. Of course, he could also wind up in a penitentiary if the second trial goes against him.

The prosecutors, the Clemens defense team and Judge Reggie B. Walton agreed on one thing: Under American law, the only way the judge could dismiss the case and prohibit a second trial would be to conclude that the prosecutors had deliberately disobeyed his order. On the eve of the trial in July, Walton ruled the prosecutors could not mention Laura Pettitte's confirmation that her husband, Andy, had told her Clemens admitted to using human growth hormone. In the judge's view, Laura Pettitte's statements were double hearsay and so impermissible at trial. When, on the second day of the trial, Prosecutors Steven Durham and Daniel Butler played a video that showed a Congressman discussing Laura Pettitte's sworn statement, the Clemens defense team accused them of a deliberate action in violation of the order. Walton's decision on Friday rejected that accusation and instead was based on his finding that the order was violated through a bit of benign neglect. Although the judge lectured the prosecutors and displayed his fury and frustration with their blunder, he concluded that there was no possible reason for them to have deliberately violated the order.

What caused Walton to believe Durham's assertion that he was merely negligent when the video was shown to the jury?

Two factors persuaded Walton of Durham's innocence. The first was that the blunder came in an early stage of the proceeding. The trial had barely begun. It was too early to tell which side -- the prosecution or the defense -- was ahead. If the July trial were a championship boxing match, the prosecutors' mistake happened in the first of 15 rounds. The mistrial was declared during examination of the second of 45 prosecution witnesses. If anything, the prosecution's case was going better than expected. Early in the trial and with things going well, there was no discernible reason for a deliberate disruption of the proceeding. The second factor is that Walton knows these prosecutors and knows them to be highly professional, career crime fighters. Durham tried his first case before Walton in 1984. Walton, Durham and Butler have worked in the same building for more than 20 years. Walton knows them well enough to know they are not the kind of lawyers who would deliberately sabotage a case under any circumstances, much less early in a trial that is going well.

Did the prosecutors offer any explanation for their error at Friday's hearing?

They didn't present a specific, minute-by-minute account of what led to the mistake. Instead of piling up affidavits and time records to show they were overworked in the days and weeks leading up to the trial -- a situation that might have led them to overlook the presence of the Laura Pettitte references in the video exhibit shown to the jury -- they relied on their assurances to the judge that they are people of integrity. Durham, in a highly emotional plea, told Walton he has devoted his life to law enforcement and he cherishes his reputation for presenting his cases fairly and equitably. He confessed to the mistake, clearly mortified. The judge apparently viewed it as an honest plea from a lawyer who, as Walton acknowledged in the hearing, has an impeccable record. Walton could have forced the prosecutors to explain in greater detail, but he relied on Durham's personal assurance to make his ruling.

[+] EnlargeSteve Durham
AP Photo/Alex BrandonAssistant U.S. Attorney Steve Durham built a case for a second trial on the strength of his reputation as a crime fighter.

When the second trial begins next year, will either side have an advantage from what happened in the first trial, the mistrial and the decision to allow a second trial?

No. Although Clemens' attorney, Rusty Hardin, argued the government gained an edge when it heard his initial opening statement to the jury July 13, there were no surprises in what Hardin argued. Both sides were familiar with the strengths and weaknesses of their respective positions. In the two days of testimony from two witnesses, there was nothing that surprised anyone -- other than the obvious exception of the mention of Laura Pettitte. The only real unexpected development was the discovery several days before the trial of a manuscript of an autobiography by Brian McNamee, Clemens' former trainer and a key government witness. With highly skilled lawyers on both sides, the late discovery of that material would not have had a great impact in the July trial, but now, both sides have several months to absorb the manuscript information and mold it for use in the second trial.

Was Walton correct in his decision to allow a second trial?

Yes. As angry and frustrated as he was when he saw the Laura Pettitte video, Walton knew Durham and Butler would not have inserted the material deliberately. And he knew a complete dismissal of the case would have been a windfall for Clemens. The charges against Clemens are serious. If he is convicted, he likely will be sentenced to a federal penitentiary. Clemens and Hardin have always insisted they want a trial to prove Clemens' innocence. Of course, they would have been happy if Walton had prohibited a second trial, but now the charges will be presented and tested before a jury. It's the way these things are supposed to be decided.

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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