Clemens Prosecutors Take Second Shot at Perjury Retrial
By Tom Schoenberg -Apr 13, 2012 12:00 AM ET
Roger Clemens, the former New York Yankees pitcher accused of lying about steroid use, saw just two days of the government’s case against him last year before a prosecution error put an end to his perjury trial.
None of the key witnesses had taken the stand, leaving each side with little preview of the opposition’s strategy as Clemens’s retrial is set to begin April 16 in federal court in Washington.
“In this case, because the trial started, then stopped as quickly as it did, I’m not sure there’s a huge advantage to either side,” said Benjamin Brafman, a New York lawyer who successfully defended former International Monetary Fund chief Dominique Strauss-Kahn against rape charges.
Clemens, a seven-time Cy Young Award winner, is charged with one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury in connection with a congressional probe of ballplayers’ alleged use of performance-enhancing drugs. If convicted on all counts, Clemens, 49, would face as long as 30 years in prison and a $1.5 million fine.
U.S. District Judge Reggie Walton declared a mistrial in July after finding that prosecutors improperly showed the jury a video clip of a 2008 congressional hearing in which the wife of government witness Andy Pettitte was discussed. Walton had ruled earlier that no references to Laura Pettitte, or an affidavit she gave Congress, could be made during the government’s case.
‘Confusion and Sympathy’
Prosecutors asked Walton on March 19 to bar Clemens from telling jurors about the collapse of his first trial, claiming it could “foster confusion and sympathy.”
They also asked Walton to prevent Clemens’s defense from repeating certain statements that were made to jurors in the first trial.
Clemens argues in court papers that prosecutors are trying to “preemptively attack” his defense with “cherry-picked and out-of-context portions” of his lawyer’s opening statement from the first trial, which the government didn’t object to at the time.
Walton is scheduled to consider that request and any other pretrial issues at a hearing today. In August 2010, he issued a gag order covering Clemens, his attorneys, prosecutors and potential witnesses, warning them not to make prejudicial comments about the case in public.
Opening statements in the first trial signaled a defense focused almost exclusively on Brian McNamee, Clemens’s former trainer and the government’s only eyewitness. Clemens, who admits to being injected by McNamee, said he thought he was receiving vitamins and other permissible substances.
“Roger Clemens’s only crime was having the poor judgment to stay connected to Brian McNamee,” Clemens’ lawyer, Rusty Hardin, told jurors. “Evidence that this guy used steroids and HGH is so inconsistent with his career in the league that there is no way he would have done it.”
A congressional investigation into the use of performance enhancing drugs in Major League Baseball concluded Clemens used banned substances toward the end of his 24-year career. Prosecutors said about 45 witnesses will support their contention that Clemens knowingly lied about drug use in a congressional interview and a public hearing in February 2008. Clemens has denied wrongdoing.
The trial, scheduled to last four to six weeks, will feature testimony from Clemens’s wife, former congressional investigators and Major League Baseball players, including former Yankees teammates Pettitte, Mike Stanton and Chuck Knoblauch.
Pettitte to Testify
Pettitte, the former All-Star pitcher who signed a minor league contract after a one-season retirement, will testify about his own use of human growth hormone and McNamee’s assistance with injections, the government said in a March 23 filing.
While MacNamee may be the defense target, Pettitte is the linchpin to the government’s efforts, said Bernie Grimm, a Washington defense lawyer at Cozen O’Connor who isn’t involved in the case.
“This is not a ‘Whodunit’ case,” Grimm said in an interview. “Pettitte will be the deciding factor.”
Pettitte’s importance as a witness was a factor in Walton’s decision to order the mistrial.
“I think Mr. Pettitte’s testimony is going to be critical as to whether this man goes to prison,” Walton said about 45 minutes before declaring a mistrial on July 14.
Clemens has denied drug use since former U.S. Senator George Mitchell released a report on steroids in Major League Baseball on Dec. 13, 2007, that named Clemens and 85 other players. In 2008 testimony to Congress, Clemens repeatedly maintained his denial of ever using banned substances.
The Federal Bureau of Investigation opened an inquiry after the committee’s leaders told then-U.S. Attorney General Michael Mukasey in writing that Clemens may have lied under oath.
Clemens’s denials were contradicted by McNamee, who said he injected the athlete with steroids and HGH. Pettitte, meanwhile, told the committee that Clemens admitted to him in 1999 or 2000 that he used HGH, considered a performance-enhancing drug for its ability to grow muscle and aid recovery after training.
Clemens testified to Congress that McNamee injected him with only vitamin B-12 and the painkiller Lidocaine. Pettitte, who played alongside Clemens with the Yankees and Houston Astros, “misremembers” a conversation they had about HGH, Clemens said.
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