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Thursday, July 14, 2011
Government flubs Roger Clemens case

By Mark Kreidler
Special to ESPN.com

This just in: The federal government is terrible at this.

And as for the rest, the big, big, picture? You'll just have to make up your mind yourself.

For anyone who held out hope that there might be some legal finding, some jury pronouncement, that would help him decide what he thought about the Roger Clemens case, Thursday was an instructive little exercise. That was the day a U.S. district court judge ruled that prosecutors had so utterly pre-poisoned the jury in Clemens' perjury trial that there was no going forward.

Clemens in Court (Artist Rendering)
Roger Clemens was in court Wednesday but will not be back for a while, after U.S. District Judge Reggie Walton declared a mistrial Thursday.

Thus, the mistrial that Judge Reggie Walton declared put the Clemens case back into the hopper, with the feds deciding whether to refile, the judge deciding whether that's even permissible, and the entire proceeding essentially put on hold for months, at least in terms of its public presentation.

Couple this result with the Barry Bonds case in San Francisco, in which a slew of initial accusations eventually boiled down to a single conviction on an obstruction charge that never specifically mentioned the word "steroids," and what the government has to show for these two files is tantamount to some giant swings and misses.

And regardless of whether the Clemens case is refiled, the overarching reality is that the courts won't ultimately be of much help here. In terms of what people think about Bonds, Clemens, Mark McGwire, Sammy Sosa and the rest of the Steroid Era crew, it's the court of public opinion that has rendered the most striking verdicts.

Clemens' mistrial was just a plain old legal screw-up. The judge had told prosecutors they could not introduce testimony of Andy Pettitte's wife unless it was in rebuttal, since she did not hear Clemens directly state he had used human growth hormone.

Once that hearsay information was in fact introduced via video, the mistrial was on. If you're the kind of baseball fan for whom this performance-enhancing drug debate is either tiresome or annoying, relief has been delayed. The government still has to ponder what to do, and that means the Clemens conversation will continue. And even if the government wants another shot, the judge may well decide that trying Clemens again would constitute double jeopardy and disallow it.

Roger Clemens and Rusty Hardin
Rusty Hardin and Roger Clemens arrived at court Thursday morning with a successful strategy.

But it won't finally solve anything either way. We all know that by now. The government just isn't going to produce on this one. Prosecutors went after Bonds with a special zeal, but in the end they couldn't get his personal trainer, Greg Anderson, to testify against Bonds, and thus were left with a large bag of not much.

In Clemens' case, the judge went so far Thursday as to note, rather loudly, how much taxpayer money was being spent (and in this specific instance wasted) on the matter. I'm not sure whether he was making a broad editorial statement or was just angry that the government had blundered so badly, but there's no question that his won't be the only voice raised in that direction.

And considering the meager results so far, it's tough to argue the other side. The government clearly wanted to make a statement in the PED era in sports. It's making one, all right -- it is giving every detractor more reason to believe that the feds are in over their heads.

Mark Kreidler is a longtime contributor to ESPN.com. His work, "Six Good Innings," was named one of the Top 10 Sports Books of 2009 by Booklist. His next book, "The Voodoo Wave," will be released in August by W.W. Norton. Reach him at mark@markkreidler.com.

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