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Thursday, September 1, 2011
Tough call on Roger Clemens trial re-do

By Lester Munson
ESPN.com

Both sides think the decision should be simple.

Roger Clemens and his legal team say the prosecutors' blunder that caused a mistrial in July was "premeditated" and "intended to provoke a mistrial."

The prosecutors say it was "an inadvertent error" and they "had no reason to want a mistrial."

The two sides disagree on just about everything, which means a ruling will not be so easy for U.S. District Judge Reggie B. Walton. He will preside over the next step in the process: a hearing Friday morning in Washington, D.C.

Roger Clemens
Roger Clemens might be able to walk away free and clear of his legal woes after Friday's hearing.

If the judge concludes that the prosecutors deliberately goaded Clemens' attorney Rusty Hardin into demanding a mistrial, then it's all over. Clemens walks away in triumph from a prosecution that only a few months ago seemed likely to land him in a federal penitentiary.

If he concludes that overworked prosecutors innocently forgot to remove the barred evidence, then there will be a second trial.

The evidence in question is a video of part of Clemens' testimony before a House committee in February 2008. In the video, he is confronted with a sworn statement from Andy Pettitte's wife, Laura, confirming Andy's claim that Clemens admitted using HGH. Walton viewed Laura Pettitte's statement as double hearsay and told prosecutors they would not be permitted it use it in the trial in July of this year. But they played the video in front of the jury, violating Walton's order and precipitating the mistrial.

Clemens' lawyers say that a dismissal of the charges is "what justice requires." The prosecutors say a dismissal would be an "unwarranted windfall" for Clemens.

They do not even agree on the length of the July trial. Hardin suggests it was in its sixth day when the mistrial was declared. That conclusion supports his assertion that the trial had gone on long enough for the prosecutors to realize it was going "poorly" for them, which forced them to sabotage the trial and try for a do-over.

The prosecutors say the trial was in only its second day. That conclusion supports their assertion that they had no reason to seek a mistrial in the earliest stages of a four-week trial. It was "impossible," the prosecutors stated in their brief, "to believe the case was going badly when the case was barely going."

Both sides are right. It was both a six-day trial and a two-day trial. Jury selection consumed four days. Opening statements began on the fifth day (or the first day, in the prosecutors' view), and the first two witnesses appeared on the sixth day (or the second by prosecution math).

Reggie Walton
Judge Reggie B. Walton must rule on the potential intent of the prosecutors' error at the July trial.

Although the selection of the jury is easily the most imprecise exercise in any trial, both sides are certain that they had an edge when the 12 jurors and four alternates were finally selected and seated.

Hardin argues that the prosecutors were out of challenges and were unable to prevent the seating of the last juror even though the juror said "it shouldn't be in the government's business" to investigate a professional athlete's use of steroids and that he would "hold the government to a higher burden of proof."

But the prosecutors reject the assertion that they were unhappy with the jurors. "Nothing in the record supports the defendant's conjecture that the government was dissatisfied with the sworn jury," they said in their brief. They reminded Walton that they were successful in removing two jury candidates who were unacceptable to them as biased in favor of Clemens.

The two sides even argue about their mutual efforts at trial preparation. Hardin loves to describe the "vast resources" the government devoted to its "dogged investigation" and refers to the effort as "an all-points national investigation." How could the prosecutors have overlooked the elimination of the barred evidence, he asks, when the "detail-oriented" and "highly experienced" lawyers spent "two weeks off-and-on actively working" with the video in question?

The prosecutors say they were focused on jury selection, their opening statement and jury instructions at the time of Walton's decision to bar any mention of Laura Pettitte and her confirmation of husband Andy's description of Clemens discussing his use of HGH. In the "press" of beginning a major trial with its "flurry" of last-minute activity, they say they simply neglected to remove the mention of Laura Pettitte.

Walton will listen Friday morning to the opposing arguments. Was the error "premeditated" or inadvertent?" Is it a matter of "justice" for Clemens, or a "windfall" for Clemens? Was the trial in its sixth day or its second day? Did either side win the jury selection process? Did the "detail-oriented" prosecutors sabotage the trial? Or did overworked prosecutors overlook a task?

Whatever Walton concludes, his decision will be based on the answer to one critical transcending question: Will he believe prosecutors Steven Durham and Daniel Butler as they claim they were guilty of mere negligence and had no intention to abort the trial?

Andy and Laura Pettitte
At issue is Laura Pettitte's confirmation that her husband, Andy, discussed Clemens' alleged use of HGH with her. The jury was not supposed to see anything relating to her version.

Walton and the prosecutors have worked in the same courthouse for nearly two decades. They know each other well. Walton's reaction to the prosecutors' mistake when it happened on July 14 was a combination of incredulity and rage. He could not believe they had ignored his order, and he was furious as he concluded that a mistrial was inevitable.

Durham and Butler, undoubtedly reacting to Walton's fury in the first trial, have added David Goodhand, a specialist in arguments to higher courts, to their legal team. The prosecutors cannot comment about the new attorney because of Walton's order gagging both sides from public comments, but it is clear that Goodhand's job will be to emphasize the analytical strength of the prosecutors' position and to protect Durham and Butler from personal confrontations with Walton. It is clearly the hope of the prosecution team that it will be able to focus Walton's attention on abstract legal principles and powerful precedents that support its position, and to prevent a reprise of the angry confrontation that led to the mistrial seven weeks ago.

Will Walton issue a decision Friday morning? In most such hearings, judges will listen to the lawyers' arguments and then, several days or a few weeks later, issue a written opinion announcing and explaining their decisions. Their opinions are published in a series of legal volumes known as the Federal Supplement, which allows judges to make decisions a permanent part of the nation's legal history.

But Walton could issue a shoot-from-the-bench ruling at the conclusion of Friday's hearing. He likes to appear to be efficient, moving his cases along briskly. He likes to appear to be decisive, issuing rulings quickly and conclusively.

My guess is that Walton will listen politely to both sides, ask a few questions, and then tell the attorneys that he is taking the issue "under advisement" and will issue an opinion in September. In the eventual opinion, he likely will express his frustration over the prosecutors' mistake, express his regard for their record of past professionalism in his courtroom and elsewhere, and order a second trial of the charges against Clemens.

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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