US judge declares mistrial in Clemens perjury case

WASHINGTON, July 14 (Reuters) - A judge declared a mistrial on Thursday in the perjury trial of baseball pitching great Roger Clemens because the lead prosecutor gave jurors information that had been barred from the courtroom.

Judge Reggie Walton was furious at prosecutor Steven Durham for introducing material in a video that appeared to bolster the credibility of a future witness, Clemens’ former teammate Andy Pettitte, and referred to Pettitte’s wife, Laura.

“If this man is convicted, knowing how I sentence, he goes to jail,” Walton said. “He is entitled to a fair trial, in my view he cannot get one.”

The mistrial was a major setback for the government, which spent more than a year preparing the case and was only in its second day of presenting its evidence with the prosecution’s third witness on the stand.

Four days were spent on selecting a jury.

Clemens, 48, whose career spanned 24 years playing for four teams and winning the Cy Young Award for best pitcher seven times, was fighting charges that he lied to Congress in 2008 when he denied taking steroids and human growth hormones.

Walton said the parties would have to discuss whether retrying Clemens would violate the constitutional protection against double jeopardy, which protects an individual from being tried twice for the same offenses.

A hearing on that issue will be on held Sept. 2 but no new possible trial date was set.

Durham had pressed Walton to reconsider or instead instruct the jury to disregard the information presented in a video of the 2008 congressional testimony by Clemens to the House of Representatives’ Committee on Oversight and Government Reform.

“You’re not going to be able to convince me,” Walton said in rejecting the request.

A spokesman for the prosecutors declined to comment.

VIDEO FROM HEARING AT ISSUE

In admonishing Durham, Walton said the prosecutor had violated his order in his opening statement as well as by referring to certain other players who took steroids, all of which he had ruled inadmissible.

“A first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,” Walton said, raising his voice in anger at Durham. “I don’t see how I unring the bell.”

The video showed Democratic Representative Elijah Cummings during the steroids hearing making references to Pettitte, who admitted to using the drugs, and references to conversations the ballplayer said he had with his wife about Clemens regarding human growth hormones.

Walton halted the video tape as it was playing, and called the lawyers to the bench to discuss the violation of his order, leaving for several minutes the video with the text of Cummings’ remarks frozen on the screen for jurors to see.

The judge expressed grave concerns that Cummings’ remarks were improperly bolstering the credibility of Pettitte, calling him a “critical witness” and one that would be hard for Clemens to undermine in such circumstances.

He was also upset that Cummings was referring to an affidavit by Laura Pettitte.

“Andy told me he had a conversation with Roger Clemens in which Roger admitted to him that he had used human growth hormones,” were the words of Laura Pettitte highlighted and frozen on the screen in front of the jury.

Prosecutors have promised several witnesses to prove Clemens took the performance-enhancing drugs and then lied about it, including Pettitte and his former trainer Brian McNamee. Defense attorneys have branded the latter a liar.

Clemens has said Pettitte, once a close friend, had misremembered and misheard the conversation which had been relayed to his wife. Walton had previously excluded any initial references to Laura Pettitte.

In addition to fighting the possible double-jeopardy argument, prosecutors will also have to decide whether they want to attempt to retry the case in the wake of criticism that there were more important cases to pursue.

Clemens’ chief defense lawyer, Rusty Hardin, patted his client on the back after jurors were excused from the courtroom. The former pitcher signed a few autographs as he left the courthouse and went into a nearby sandwich shop.

“He’s eager to get back to his family as soon as he can,” Hardin said, declining further comment because Walton has issued a gag order in the case.