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Friday, July 15, 2011
Assessing the Clemens trial disaster

By T.J. Quinn
ESPN.com

WASHINGTON, D.C. -- The aftermath of Thursday's mistrial in Roger Clemens' federal perjury case had the feel of a hazardous materials spill: shock over what happened, an immediate impact assessment and speculation over how far the contamination would spread.

Legal experts said it was hard to overstate the level of the government's blunder when prosecutors, apparently inadvertently, allowed the jury to see information that had been specifically excluded by the presiding judge from the trial.

The government was in the process of showing a tape from the 2008 congressional hearing at which Clemens appeared. While the jurors watched a replay of Rep. Elijah Cummings' questioning of Clemens, they saw as Cummings began to talk about Laura Pettitte, Andy Pettitte's wife, who signed an affidavit saying her husband told her Clemens had admitted to using human growth hormone.

But Judge Reggie Walton had told government attorneys before the trial that they could not bring her testimony into the courtroom unless the defense opened the door (it hadn't.) Walton stopped the proceedings before Cummings said too much about Laura Pettitte, and someone paused the tape. While Walton conferenced with attorneys at the bench, the jury was able to see a frozen image of Cummings and, below his face, a written transcript of what he was about to say: that Laura Pettitte had sworn an affidavit in support of her husband.

What might have been a recoverable mistake was hopelessly compounded by an unrecoverable one, in Walton's eyes. I cannot unring the bell, he said. The mistrial was declared.

The fact that the mistakes came from two of the most respected, veteran and decidedly unflashy prosecutors in the U.S. Attorney's Office in Washington made it even more bewildering. In the fog of the day, a number of questions arose:

Q: How did it happen?

A: When Walton ruled before the trial that Laura Pettitte's testimony was conditionally barred from court, the government assumed the responsibility to make sure its exhibits, such as the tape and transcript of the hearing, did not contain any banned material. The government argued the defense had possessed the same exhibits for weeks and hadn't asked for them to be changed, but Walton angrily dispatched that argument, saying the government hadn't done its job.

Q: Was the government trying to get away with something?

A: It's hard to imagine that assistant U.S. attorneys Steven Durham and Daniel Butler, both lauded for their honor by defense attorney Rusty Hardin during the trial, would pull such a risky stunt. Lawyers who know both men said they think they simply made a mistake.

Q: Does this mean the government will stop going after cases involving athletes and performance-enhancing drugs?

A: There is a conventional wisdom that the government is now 0-2 against Barry Bonds and Clemens. That's simplistic, and it isn't how prosecutors see it. Bonds was convicted on one of the four counts against him, which the government saw as a win, especially after large chunks of evidence were excluded from the trial. Yes, the conviction could be tossed, but the government also could try Bonds again on the other three counts, on which the jury could not reach a decision. Bonds was not acquitted on any count.

With Clemens, the government believes it has a strong case. Clemens didn't head home to Houston because he was acquitted; he left because the government made a monstrous error. Whatever the outcome of the Bonds or Clemens cases, they should have little effect on the government's pursuit of Lance Armstrong.

Clemens and Bonds were peripheral to criminal investigations; neither was a target, and both were accused of perjury. Armstrong appears to be a target in a case expected to charge him with defrauding the government to run a doping operation. Charges could include fraud, conspiracy and trafficking. One source close to the case told ESPN that investigators feel like the evidence already collected against Armstrong is the strongest of any of the PED-related cases. That evaluation will be up to a judge and jury, but it doesn't sound like the government is backing off.

Q: Why couldn't Walton have told the jury to ignore the Laura Pettitte testimony?

A: He could have but felt that because the jury had already seen her testimony, Clemens couldn't possibly get a fair trial. Walton's comments when he declared the mistrial were interesting; he said he thought it would be difficult for the defense to undermine Andy Pettitte's expected testimony and that it wasn't fair to have the jury see inadmissible testimony from his wife that further bolstered his credibility.

In court, it seemed like a clear signal to Clemens and his attorneys that Walton thinks the government has a strong case. Walton also said that knowing the way he sentences, a guilty verdict would have meant certain jail time for Clemens. Walton is famous for giving harsh sentences, but he also is known for bending over backward to give defendants a fair trial before he does.

Q: So what's next?

A: The defense will file a motion by July 29, in which attorneys almost certainly will argue that trying Clemens again would be double jeopardy. The government then will file its response, in which it is almost certain to argue that while jeopardy might have attached after the jury was sworn in, it should be able to try Clemens again because the mistake was inadvertent and the defense made the motion for mistrial, not the prosecution.

As ESPN legal analyst Lester Munson pointed out, the government likely will argue that it was overworked and understaffed and really, really won't do it again. After that, the two sides are scheduled to meet before Walton on Sept. 2 for a hearing, and he'll hand down a decision sometime after that. If he rules the government may retry Clemens, Hardin probably will appeal that decision, which could further delay a trial.

Q: If the government can't retry him, would that be the end of it for Clemens?

A: Legally, yes. If the judge finds there's double jeopardy, the case is over. Clemens could stand on top of the Capitol and say he was lying the whole time, and there would be nothing the government could do about it. But what he won't be able to do is challenge the very public accusations against him in a court of law.

The world heard that Andy Pettitte swore Clemens admitted to using HGH; it heard Brian McNamee say he injected Clemens himself; it heard the government say in its opening statement that the needles McNamee turned over to the FBI had traces of both Clemens' DNA and PEDs. That's another bell that's hard to unring.

Without a trial, Clemens won't get to legally challenge Pettitte's testimony or make his case that McNamee manufactured the physical evidence. He won't get to publicly dissect McNamee the way he must surely want. Instead, he would have to wait until Walton lifts his gag order and then make his case to the world, which does not live inside the bubble of a jury box.

T.J. Quinn is a reporter for ESPN's Enterprise/Investigations unit. He can be reached at tjquinn31@yahoo.com.