Judge declares mistrial in Roger Clemens perjury case (Reuters)

WASHINGTON (Reuters) – A judge declared a mistrial on Thursday in the perjury trial of baseball great Roger Clemens, because prosecutors violated an order that barred certain information from being introduced to the jury.

Judge Reggie Walton was furious at prosecutor Steven Durham for introducing evidence that appeared to bolster the credibility of a future witness, Clemens' former teammate Andy Pettitte, and referred to Pettitte's wife, Laura, after the judge issued an order that limited or barred such information.

"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 mistrial was a major setback for the government, which spent a year preparing the case. Four days were spent on selecting a jury.

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 the double-jeopardy issue will be on September 2 but no new possible trial date was set.

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

"I'm not going to put this man's liberty in jeopardy," Walton said, adding that prosecutors could not persuade him to reconsider his decision. "You're not going to be able to convince me."

Clemens is facing charges that he lied to the committee when he denied taking steroids and human growth hormones from 1998 to 2001. The pitching star and one-time Hall of Fame contender has denied taking drugs or lying to Congress.

In admonishing the prosecutor, Walton said Durham had violated his order during his opening statement as well. The judge also said that defense lawyers should have raised objections immediately when the information was played.

The video showed Democratic Representative Elijah Cummings making references during the 2008 hearing about Pettitte, who admitted to using steroids, and conversations Pettitte said he had with his wife about Clemens talking about using human growth hormones.

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

Clemens, 48, pitched for four teams during his 24-year career in baseball, including the New York Yankees, Boston Red Sox, Toronto Blue Jays and Houston Astros. He was one of only four pitchers to strike out more than 4,000 batters.

He was a seven-time winner of the Cy Young Award annually honoring the best pitcher in each league.

(Reporting by Jeremy Pelofsky in Washington; editing by Mohammad Zargham)

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Judge declares mistrial in Clemens case (AP)

By JESSE J. HOLLAND and NEDRA PICKLER, Associated Press Jesse J. Holland And Nedra Pickler, Associated Press – 34?mins?ago

WASHINGTON – The judge declared a mistrial Thursday in baseball star Roger Clemens' perjury trial after prosecutors showed jurors evidence the judge had ruled out of bounds.

U.S. District Judge Reggie Walton said the prosecutors had made a grave mistake. And he said Clemens could not be assured a fair trial after jurors were shown evidence against the court's orders in the second day of testimony.

Walton scheduled a Sept. 2 hearing to determine whether to hold a new trial. He told jurors he was sorry to have wasted their time and spent so much taxpayer money, only to call off the case.

"There are rules that we play by and those rules are designed to make sure both sides receive a fair trial," Walton told the jury, saying such ground rules are critically important when a person's liberty is at stake.

"If this man got convicted, he would go to jail," Walton said.

He said that because prosecutors broke his rules, "the ability with Mr. Clemens with this jury to get a fair trial with this jury would be very difficult if not impossible."

Prosecutors suggested the problem could be fixed with an instruction to the jury to disregard the evidence, but Walton seemed skeptical. He said he could never know what impact the evidence would have during the jury's deliberations "when we've got a man's liberty at interest."

"I don't see how I un-ring the bell," he said.

Defense attorney Rusty Hardin patted an unsmiling Clemens on the back as the judge announced his decision. Clemens did not speak to reporters as he left the courtroom and made a telephone call in a private corner of the hallway.

Clemens and his lawyers remain under a court gag order and they declined to comment as they left the courthouse. Clemens hugged a couple of court workers, shook hands with the security guards and signed autographs and a couple of baseballs for fans

"I'm not going to say anything," Clemens said, sounding frustrated at the mass of reporters and camera crews. He and his legal team ducked into a nearby restaurant to escape the horde of news people.

Walton interrupted the prosecution's playing of a video from Clemens' 2008 testimony before Congress and had the jury removed from the courtroom. Clemens is accused of lying during that testimony when he said he never used performance-enhancing drugs during his 24-season career in the Major Leagues.

One of the chief pieces of evidence against Clemens is testimony from his former teammate and close friend, Andy Pettitte, who says Clemens told him in 1999 or 2000 that he used human growth hormone. Clemens has said that Pettitte misheard him. Pettitte also also says he told his wife, Laura, about the conversation the same day it happened.

Prosecutors had wanted to call Laura Pettitte as a witness to back up her husband's account, but Walton had said he wasn't inclined to have her testify since she didn't speak directly to Clemens.

Walton was angered that in the video prosecutors showed the jury, Rep. Elijah Cummings, D-Md., referred to Pettitte's conversation with his wife.

"I think that a first-year law student would know that you can't bolster the credibility of one witness with clearly inadmissible evidence," Walton said.

He said it was the second time that prosecutors had gone against his orders — the other being an incident that happened during opening arguments Wednesday when assistant U.S. attorney Steven Durham said that Pettite and two other of Clemens' New York teammates, Chuck Knoblauch and Mike Stanton, had used human growth hormone.

Walton said in pre-trial hearings that such testimony could lead jurors to consider Clemens guilty by association. Clemens' defense attorney objected when Durham made the statement and Walton told jurors to disregard Durham's comments about other players.

There was no objection from Clemens' team during the Laura Pettitte reference, but the judge stopped the proceedings, called attorneys up to the bench and spoke to them privately for several minutes. Hardin pointed out during that time, the video remained frozen on the screen in front of jurors with a transcript of what was being said on the bottom.

Cummings had been quoting from Laura Pettitte's affidavit to the committee. "I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones," the text on the screen read.

The judge eventually told the jurors to leave while he discussed the issue with attorneys in open court.

"Government counsel should have been more cautious," Walton said, raising his voice and noting that the case has already cost a lot of taxpayer money. He then left the courtroom and said he would go consult with a colleague on what to do.

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Prosecutors say needles had Clemens DNA, steroids (AP)

By NEDRA PICKLER and MARK SHERMAN, Associated Press Nedra Pickler And Mark Sherman, Associated Press – 1?hr?14?mins?ago

WASHINGTON – Prosecutors said Wednesday that needles and cotton balls Roger Clemens' former trainer says he used to inject the star pitcher at the height of his career tested positive for Clemens' DNA and anabolic steroids.

Assistant U.S. attorney Steven Durham revealed the results during opening arguments in Clemens' trial on charges of lying to Congress about using performance-enhancing drugs. Clemens' attorney has accused the pitcher's former trainer, Brian McNamee, of fabricating the evidence in case he needed to blackmail the baseball star into continuing to employ him.

Clemens has said that the only things McNamee ever injected him with were the common local anesthetic lidocaine for his joints and vitamin B-12. But Durham said neither substance was found on the needles or cotton swabbed with his blood stains.

Clemens attorney Rusty Hardin told the jury that the government is "horribly wrong" in charging his client with perjury, false statements and obstruction of Congress. Clad in a dark suit, Clemens watched silently from the defense table with a clenched jaw.

"There was rush to judgment on Roger that has made it impossible for him to be fairly heard until he got here," Hardin said in the federal courthouse just a couple blocks from the congressional hearing room where he testified three years ago.

"It's a fact of life that sometimes when people reach the mountain, there is an unwillingness to give them equal consideration when people come down on them," Hardin said. "And that's what happened with Roger."

Durham said that about 45 witnesses, including several of Clemens' former teammates, will help make the case that Clemens used anabolic steroids and human growth hormone. When Clemens denied the use under oath, Durham said, "It was false and he knew it was false."

Clemens continues to maintain he didn't use drugs during a 24-season career that set several pitching records.

In preliminary discussions before the jury of 10 women and two men arrived, U.S. District Judge Reggie Walton reacted sharply when Hardin appeared to refer to the proceedings as a "circus."

"This is not a circus," Walton said, jabbing his pointer finger down on his desk.

Hardin quickly assured the judge he was talking more broadly about the congressional hearings at the heart of the case, as well as the prosecution. "Do I look suicidal?" Hardin said.

Later when addressing the jury, Hardin tried to fight the perception that Clemens arrogantly insisted on testifying before Congress and put himself in this criminal position. He was not subpoenaed and Hardin says it was "technically true that he voluntarily appeared" but he said it was under tremendous pressure.

"Roger Clemens, unless he was comatose, always knew the danger of him testifying," Hardin said.

He showed a photo of the crush of photographers around the witness table as he came into the hearing room and called it a "scene." Then he showed video of Clemens telling lawmakers that he thinks steroids are wrong and detrimental, but "no matter what we discuss here today, I'm never going to have my named restored."

Hardin objected during Durham's opening argument when the prosecutor told jurors that Clemens teammates Andy Pettitte, Chuck Knoblauch and Mike Stanton will testify they used performance-enhancing drugs to recover from injuries and because the pressure to perform was so high in Major League Baseball. Walton has expressed concern in pretrial hearings that kind of testimony could lead jurors to consider Clemens guilty by association, and the judge told jurors to disregard Durham's comments about other players.

Durham showed a photo of the yellowing cotton balls, needles and vials turned over by McNamee, who the prosecutor described as "a man that was hand chosen by Mr. Clemens to train him." He said the evidence was tested by two California labs — one that found Clemens' DNA on the needle and cotton and another that tested them for drugs.

"They found absolutely no B-12, and they found absolutely no lidocaine," Durham said. "What they did find was anabolic steroids."

Durham said McNamee saved the material — the photo showed the Miller Lite can that McNamee kept it in for more than six years — because he was always skeptical he could trust his star client if steroid allegations ever surfaced and that he would be "thrown under the bus." Durham said McNamee did not initially tell federal agents about it, but only did so after Clemens went on CBS' "60 Minutes" and smeared his name.

"Then Mr. McNamee considered the bridge completely burned and he knew where he stood," Durham said. He acknowledged that the jury will hear many "negative things" about McNamee, but said they will not ask them to rely on evidence from any one person.

"Everything Mr. McNamee says we intend to corroborate with independent evidence," he said.

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Jury selection resumes in Clemens perjury trial (AP)

By NEDRA PICKLER and MARK SHERMAN, Associated Press Nedra Pickler And Mark Sherman, Associated Press – 10?mins?ago

WASHINGTON – Roger Clemens is still not half way to getting a jury in his perjury trial.

Jury selection resumed Monday in Washington federal court, where the ex-pitcher has been intensely watching questioning of potential panelists.

Three women with little interest in baseball were qualified Monday to join the pool of prospective jurors, bringing the total to 21. One woman, a lawyer for the Federal Communications Commission, assured the courtroom she does not watch sports on television by saying she doesn't even know how to turn on the TV at home.

Another woman questioned was excused after expressing apparent confusion over the presumption of innocence for a defendant and the prosecution's burden of proving charges beyond a reasonable doubt. U.S. District Judge Reggie Walton said she could not serve on the Clemens trial after the woman said she believes that people charged with a crime probably are guilty.

Thirty-six people need to be qualified before government and defense lawyers use their preemptory challenges to narrow the panel to 12 jurors and four alternates. Eighteen were qualified last week. Twelve have been turned away for reasons including medical issues, an inability to commit to a trial expected to last into August and biases against either Clemens or Congress for even investigating drugs in baseball.

Clemens is charged with six felonies for telling Congress under oath that he never used performance-enhancing drugs. He stands by the denial, but prosecutors say they can prove that is a lie.

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Clemens trial selecting jury; judge raps Hill (AP)

By NEDRA PICKLER and MARK SHERMAN, Associated Press Nedra Pickler And Mark Sherman, Associated Press – 59?mins?ago

WASHINGTON – Roger Clemens' perjury trial opened Wednesday with both sides raising the prospect of calling a roster of former baseball stars as witnesses and the judge angrily criticizing Congress for withholding an audiotape of Clemens' deposition at the heart of the case.

Clemens is accused of lying under oath to the House Government Reform Committee in 2008 when he denied ever using performance-enhancing drugs during his record-setting career as a major league pitcher. The trial began with an intensive jury selection process expected to last into next week.

Prosecutors and the defense read the panel a list of people who may be called as witnesses or mentioned at the trial. It included some of the biggest names in baseball, among them players who have been at the center of the steroid scandal such as Mark McGwire, Barry Bonds, Sammy Sosa, Rafael Palmeiro and Jose Canseco. Also on the list were baseball commissioner Bud Selig, New York Yankees General Manager Brian Cashman, former Yankees manager Joe Torre, former players union director Donald Fehr and several other officials and teammates from the four major league teams Clemens played for.

Jurors were asked about their knowledge of those figures as well as their feelings about the case, baseball, Congress and the law. They were asked whether they played organized sports, read sports news or were baseball fans. One woman was not. "I can't imagine spending money to watch a sport where guys scratch themselves and spit a lot," she said, drawing a smile from Clemens, who otherwise sat expressionless through most of the proceedings.

Another potential juror, former personal trainer and Little League coach Omari Bradley, said he was an avid sports fan who has seen a media drumbeat that Clemens should just admit he used steroids. Clemens attorney Rusty Hardin asked, "Can you be one of the few men in America not to be affected by it or are we going to start out this trial with you thinking he probably did it?"

Bradley, 37, responded it would be difficult for him to find Clemens not guilty. The judge excused him and two others. Six were told to return Tuesday in hopes of seating a panel that day.

The initial trial day began with a vigorous debate over the tape of Clemens deposition to House Government Reform Committee staff on Feb. 5, 2008. Ten of the 15 false or misleading statements Clemens is accused of making to Congress came during that deposition — the other five were during a public hearing eight days later.

The House publicly released a transcript of the deposition held behind closed doors, and prosecutors say the House initially indicated it would turn the audio recording over as evidence for the trial. But William Pittard, a lawyer for the House, appeared in court Wednesday and told U.S. District Judge Reggie Walton that the House clerk has the tape and it can only be released by a House resolution.

Hardin angrily responded that if jurors are to determine whether Clemens intended to obstruct Congress, "tone of voice becomes critical." He said the House referred Clemens for prosecution and should not then be able to choose which evidence to turn over.

Walton said he agreed that "it doesn't look good" to have Congress withholding evidence, but he didn't think he could force another branch of government to turn over material because the Constitution's separation of powers. He raised his voice as he scolded the House for trying to "hide behind technicalities" and said if Clemens is convicted, the court may have to consider whether he was deprived of a fair trial without the tape.

Hardin said he had a subpoena prepared to hand to House attorney Pittard, but Walton said he couldn't allow that in the courtroom. Pittard replied that it may have been possible to arrange a resolution with more time. He criticized Clemens for implying Congress won't turn over material he never asked for before and for "waiving a subpoena around in the courtroom on the day his trial begins."

Walton then addressed another key evidence issue — whether Clemens former Yankee teammates Andy Pettitte, Chuck Knoblauch and Mike Stanton will be able to testify they got drugs from the same trainer who says he provided them to Clemens. Prosecutors say the testimony is critical to back up the allegations by trainer Brian McNamee under Clemens' denials and accusations that McNamee is a liar.

Walton said during a pretrial hearing Tuesday that he probably wouldn't let the other Yankees testify about their drug use because it could lead the jury to improperly conclude that Clemens might be guilty, too. But he said he thought about it overnight and thinks the testimony might be valid if Clemens claims that McNamee tried to blackmail him with fabricated evidence.

Clemens attorneys indicated Tuesday they plan to explain that McNamee fabricated evidence against Clemens to ensure the star pitcher would continue employing him as a personal trainer after he lost his job as a Yankees trainer. But Walton questioned why McNamee would try to frame Clemens when there were other players who admit they got drugs from McNamee and who the trainer could have blackmailed.

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Clemens' trial unlikely to hear ex-Yanks' drug use (AP)

By NEDRA PICKLER and MARK SHERMAN, Associated Press Nedra Pickler And Mark Sherman, Associated Press – 1?hr?24?mins?ago

WASHINGTON – The judge in the Roger Clemens perjury trial, which begins Wednesday, is considering just how much of a salacious allegation against the star pitcher's chief accuser is fair game, and he's probably not going to let a parade of Clemens' former New York Yankee teammates testify about their drug use.

U.S. District Judge Reggie Walton held a pretrial hearing Tuesday to consider what jurors will learn about trainer Brian McNamee, who has said he injected Clemens with steroids and human growth hormone several times during the decade they worked out together. Clemens' defense is focused on convincing jurors that McNamee is a liar, and his attorneys also want to introduce allegations that McNamee drugged and raped a woman in a Florida hotel pool while on a trip with the Yankees in 2001.

McNamee was questioned by local police and admits misleading them, but he has never been charged and has said he was trying to rescue the woman from drowning. Walton said he's concerned that the rape allegation would be "extremely prejudicial," but Clemens' attorneys say it shows why McNamee would have a motive to fabricate evidence that he injected their client with illegal drugs.

The investigation occurred in 2001, the same year that Clemens helped lead the Yankees to a World Series championship and that McNamee says he decided to save needles and gauze that he used to inject the star pitcher.

McNamee's Yankee contract was not renewed after the Florida investigation. Clemens attorney Rusty Hardin said those events in 2001 prompted McNamee to begin fabricating evidence against Clemens to protect himself financially. Clemens, however, hired McNamee as a personal trainer for several years, but Hardin has said his client didn't then know the full extent of what happened in Florida. Hardin also referred Tuesday to "another date rape incident" in Seattle involving McNamee but didn't fully explain what happened.

Walton said he would reserve a final decision on whether to allow the rape allegations to be mentioned until the trial is under way.

Clemens listened closely but didn't speak at the hearing. He appeared toned-down in a dark suit and pale blue shirt with matching tie — gone were the blond highlights and flashy pinstripe suit with silver tie from his last appearance. He walked so quickly out of the courthouse, surrounded by news media, that Hardin called out from several yards behind, "Rog, wait up!"

Walton also is waiting to decide whether former Yankees Andy Pettitte, Chuck Knoblauch and Mike Stanton can testify that they got performance-enhancing drugs from McNamee. Walton said his tentative ruling is not to allow it because it will lead jurors to infer improperly that Clemens must have been getting illegal drugs if his teammates were, but he said he'll see if something changes his mind during the trial.

Walton said it would be "extraordinary" to allow such testimony and mentioned that he got cortisone shots from a trainer as a college football player. "I would not want to be held responsible for doing something inappropriate based on what that trainer was giving to other people," Walton said.

Assistant U.S. Attorney Steven Durham argued that the other player's testimony will corroborate McNamee's credibility, which is under attack by the defense, because it will prove the trainer had knowledge and ability to give drugs to Clemens. He said he expects the defense will argue that Clemens thought McNamee was getting vitamin shots from his trainer, but the teammates will testify "there was no misadvertising."

The hearing also raised an issue that Walton worried could postpone the trial. Attorneys revealed that the U.S. House has refused to turn over audio tape of Clemens' deposition by the House Government Reform Committee staff Feb. 5, 2008.

Clemens is accused of lying while under oath during that deposition and during testimony at a public hearing eight days later when he denied ever using steroids or human growth hormone. Both prosecutors and the defense expressed concern that jurors will not be able to judge fully from a transcript whether Clemens was intentionally lying.

Walton complained that the issue wasn't raised earlier. If he were to order the tape turned over, the House could appeal the ruling and that would delay the trial. Hardin said he hoped the committee could be "kindly and gently" persuaded to turn over the tape, and Walton suggested that Hardin remind them of the country's current fiscal condition. "It's going to cost the court a lot of money to have this trial delayed," Walton said.

Clemens is charged with six felony counts, including perjury, false statements and obstruction of Congress, which carry a maximum sentence of up to 30 years in prison and a $1.5 million fine. But even if jurors convict him on all counts, it's unlikely Clemens would serve nearly that long because he doesn't have a criminal record.

The trial, scheduled to last four to six weeks, begins with choosing 12 jurors and four alternates from a pool of 125. Walton plans to ask potential panelists to answer 67 questions about their background, opinions and knowledge of the case. Both sides sought a written questionnaire, but Walton said that's not his practice because it "disadvantages less-educated people." He said he would give attorneys wide latitude to ask follow-up questions.

Potential witnesses are barred from watching the trial. But Clemens asked for an exception so his wife, Debbie, could be with him throughout even though his lawyers say they will call her to testify. Prosecutors objected on grounds that could influence her testimony. Walton said she could attend during appearances by witnesses who won't relate to her testimony and anything after she testifies, but not opening arguments.

Pettitte is another important prosecution witness because he's the only person besides McNamee to say Clemens admitted using performance-enhancing drugs. Pettitte says Clemens made the admission during a conversation in 1999 or 2000, but Clemens testified before Congress that Pettitte "misheard" or "misremembers" the conversation.

Prosecutors want Pettitte's wife, Laura, to testify that her husband told her about the conversation the day it happened to counter any questioning of Pettitte's memory. Clemens attorney Michael Attanasio said Clemens didn't mean to attack Pettitte's recollection but only believes he misheard.

"He used the best words he could. He's not a scholar of linguistics," Attanasio said. Walton responded, "That's sort of the way I see it," but he reserved judgment on whether Laura Pettitte could testify.

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