In legal terms alone, Roger Clemens is off the hook, for now and possibly forever. Incensed on the second day’s testimony that prosecutors showed the jury evidence previously ruled inadmissible, federal judge Reggie Walton declared a mistrial.
And, because it did occur on a second day of trial testimony, there is a very real likelihood that Clemens will not face prosecution for perjury after all. There’s a law against double jeopardy–in fact, it rests squarely within the Supreme Law of the Land—and either Walton or another judge may rule that bringing the case back to court equals just that.
In simpler terms, prosecutors poisoned this jury—many if not most of whom knew little enough about baseball to be genuinely impartial, assuming proper trial conduct—so profoundly that there was no way a) they could reach a reasonable verdict; and, b) there may now be no way for anyone to call upon any legal finding to support his belief about Clemens one way or the other.
“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’,” writes ESPN’s Mark Kriedler, “and what the government has to show for these two files is tantamount to some giant swings and misses.” Swing and miss? The government may have balked Clemens home.
The evidence in question involved the wife of Andy Pettitte, Clemens’ long-enough-time teammate and close friend. Laura Pettitte spoke with her husband about Clemens’s use of human growth hormone (hGH), but Walton had ruled earlier that prosecutors could not show that to the jury because Mrs. Pettitte had not heard Clemens himself say, himself, that he had used it. The prosecutors committed their balk when showing a video of Clemens’s long-infamous appearance before the House Committee on Government Oversight. In the clip in question, Rep. Elijah Cummings (D-MD) referred to the conversation between the Pettittes.
During the pre-trial hearings, Walton had instructed both sides that showing the clip could influence jurors to consider Clemens guilty by association. And, in fact, the Pettitte conversation wasn’t the first issue on which the prosecution disobeyed Walton’s order. He’d warned them against the guilt-by-association inference during opening arguments, after one of the prosecution team referred to Pettitte and two Yankee teammates (Chuck Knoblauch, Mike Stanton) also using hGH. (Pettitte, you may remember, admitted to using hGH in a desperate bid to relieve and return from one of his career-long elbow issues.)
According to Fox News, Walton fanned the prosecution’s behinds firmly enough. “Ladies and gentlemen,” the network quoted Walton as telling jurors, “we have taken about a week out of your life. We have expended a lot of taxpayers’ money to reach this point. Unfortunately, there are rules that we play by and those rules are designed to ensure that both parties receive a fair trial. When a judge makes a ruling about evidence that can and cannot be presented, there is an obligation on the part of the lawyers to comply with that ruling. The government did not take the effort that it should have taken to alter its evidence to comply with the ruling that I made. As a result of that in my view the ability of Mr. Clemens with this jury to get a fair trial would be difficult if not impossible . . . I have to declare a mistrial and terminate these proceedings.”
Pettitte himself would have been one of the government’s star witnesses. A man never known to have been disingenuous, indeed the very reason why his testimony would be so prized, the retired lefthander and longtime Yankee bellwether told the same House committee hearings that he had heard Clemens acknowledge using hGH, a conversation Clemens has long since claimed Pettitte “misremembered.”
Clearly enough there would be no winner in a Clemens trial. Never mind that the Clemens defence team seemed prepared to put the trial itself in the docket, when it wasn’t preparing to put the key witness, former Clemens trainer Brian McNamee, on trial as a liar himself. “The jurors truly deserve our admiration, thanks and pity,” wrote the singular Thomas Boswell in the Washington Post after day one. They’re the ones with the tough job. We all have points of view. But they are tasked with being the ultimate ‘judges of the facts’ with a man’s freedom at stake. The gulf between fan and juror is immense and especially sobering in an information-saturated world where so many feel free to say anything about anybody, no matter how venomous, and shrug, ‘Well, that’s my opinion’.”
Clearly enough, too, the government would have looked ridiculous enough even if the trial had carried forward. The Mitchell Report had already turned Clemens’s reputation into powder, never mind the questions—which self-appointed arbiters of the game still refuse to acknowledge—as to what actual or alleged performance-enhancing substances will or won’t do for a baseball player. (Good grief, there are people enough who think hGH is a steroid. It isn’t.) Even with a particularised perjury charge, the government would have been shooting the proverbial fish in the proverbial barrel.
A conviction wouldn’t have told anyone anything new. An acquittal wouldn’t have told anyone anything comfortable. In one perverse way, the government bungling the Clemens case into a mistrial may have done everyone a big favour. Even if Clemens has the same place to go to get his reputation back as he had before he faced a perjury trial.