By Jaclyn Epstein, J.D. Candidate

On August 19, 2010, a federal grand jury indicted Roger Clemens for lying to Congress when he claimed that he never used steroids under oath. The indictment allowed Clemens to join the ranks of Marion Jones and Barry Bonds and become the third famous athlete within three years to be charged with use of performance-enhancing drugs. Now, as the first trial has already started and ended and had its fair share of mistakes and missteps, the question remains if Clemens will get out of this mess with the same bravado he had walking into it. Based on the actions of both the prosecution and the defense attorneys so far, it remains to be seen if the jury will end up making a decision based either on Clemens’ guilt or innocence or on which attorney they loathe more.

            During the second day of the trial, District Court Judge Reggie Walton declared a mistrial because the prosecution made a serious error and showed evidence that he had previously ruled out. The prosecution decided to show the jury a videotape in which Andy Pettitte revealed that he told his wife that Clemens confessed to using human growth hormone. The prosecution wanted to introduce the evidence because Andy Pettitte’s wife, Laura Pettitte, testified that Andy Pettitte told her about the conversation he had with Roger Clemens during which he confirmed his steroid use. Judge Walton said the evidence could not be used because Laura Pettitte’s testimony was not direct knowledge of what Clemens actually said. Because Clemens’ defense to Andy Pettitte’s testimony was that Andy Pettitte heard him wrong, Judge Walton correctly decided that the evidence would unfairly prejudice Clemens. However, one could see how the evidence would be relevant and even increase the likelihood that Pettitte was telling the truth. If Pettitte told his wife exactly what he heard, right after he heard it, it may be more likely that he did not mishear. However, the jury probably would be more likely to think Clemens was lying than Pettitte anyway, so Judge Walton correctly determined that the increased prejudice against Clemens would be unfair.    

The prosecution should have understood that the introduction of the evidence was against Judge Walton’s order.  At a different point in the trial, the prosecution had another problem understanding Judge Walton’s orders when they mentioned human growth hormone use by Clemens’ New York Yankees teammates, Chuck Knoblauch and Mike Stanton, in their opening statement. The judge did not want this mentioned during the trial so that the jury would not be inclined to find Clemens guilty by association. It is not entirely understandable why the government did not realize that the introduction of the evidence would be hazardous to their case. Even if this was an honest mistake by the government, it seems incredibly irresponsible that the attorneys in a high profile case would not make more of an effort to refrain from breaking a judge’s orders a second time in the case.

The government should have been more careful about the evidence they were presenting because of the effect it would have on the jurors and the taxpayers if there was a chance that the evidence could give the jurors a negative attitude about the justice system or even delay the trial. Judge Walton said that the prosecution made a mistake that a “first-year law student” would have known not to make. The jurors were dismissed after two days, which ended up being a waste of their time and a waste of the taxpayer money; the judge apologized for this. Id.The attorneys should have and could have been more careful about the evidence they chose to put on and thus prevented a mistrial. This is especially true because the trial itself is being criticized as being “déjà vu” of the Barry Bonds trial and for being an incredible waste of taxpayer money. People seem to be getting annoyed with cases with inconclusive verdicts, especially after the Barry Bonds trial which ended in the jury being unable to come to a unanimous verdict about whether Bonds was telling the truth about whether he used steroids and human growth hormone.

After the mistrial, Clemens’ attorney filed a Motion to Prohibit Retrial and Dismiss the Indictment. Clemens’ attorneys saw a chance to end this case without a trial and took it. However, Judge Walton decided that the case could be retried without violating Clemens’ right to not be placed in double jeopardy. In his blog, Michael Young points to a 1982 Supreme Court opinion that he believes Judge Walton could have used to bar a second trial.Oregon v. Kennedy, 456 U.S 667, 668 (1982), involved a situation where the defendant tried to invoke the double jeopardy clause after a mistrial was declared based on the defendant’s own motion. Although retrial is not normally barred under these circumstances, a new trial can be barred when “the error that prompted the mistrial is intended to provoke a mistrial or is ‘motivated by bad faith or undertaken to harass or prejudice’ the defendant.” Id. at 670 (quoting United States v. Dinitz, 424 U.S. 600, 611 (1976)).

The test that the Supreme Court set out and that Judge Walton had to follow when making his decision about whether there should be a new trial considers the intent of the prosecutor when he caused the actions that led to the mistrial. Id. at 674. More specifically, the Court held that harassing behavior on the part of the prosecutor is not enough to bar a second trial. Id. at 675-76.  To make this determination, the court has to look at the objective facts and circumstances of the particular case to decide what the prosecutor’s intent was. Id. at  675.

It is understandable that Judge Walton would not have wanted to make such a brash determination and get rid of the case altogether. Objectively, Judge Walton believed that the prosecutors made a mistake, without having intent to cause a mistrial. Without being fully sure that the intent of the prosecution was to cause a mistrial, the prudent decision was to go on with the case. Therefore, it seems as if Judge Walton made the right decision when he decided that the show must go on. Unfortunately, there is no case indicating that a second trial should be barred to protect the public, and especially the jurors, from being subjected to this trial again.     

The new trial is not off to a great start, especially now that attorneys on both sides of the Clemens trial are making mistakes. Just a few days ago, the Clemens team violated a court order when they contacted jurors from the two-day trial after Judge Walton’s order that the jurors not be contacted without his permission.  In order to rectify the situation, the prosecution asked for the opportunity to speak to the jurors as well. The prosecutors also wanted Clemens’ team to turn over the notes from their conversations with the jurors, but the judge did not want to rule on this before he had legal authority from the prosecutors that he could do this. Regardless of whether the prosecution finds the authority to get the notes from Clemens’ team, at this point, that does not seem to be the most important issue at hand. The real problem in this case is what it says to the jury about trials and the justice system. Not only had these jurors witnessed a blunder by an attorney that caused them to waste their time, now they must deal with the attorneys contacting them although they are not supposed to. The point of the rule seems to be to protect the jurors as much as it is to protect the case. It is bad enough when the attorneys jeopardize their own cases and their clients. However, the level of irresponsibility increases even more when the lives of the jurors are involved. Now, the jurors have to deal with being contacted by one side of the case and have been asked if they can be contacted by the other side as well. Although Judge Walton seems to be making the right calls in this case, it is yet to be seen if the lawyers on both sides will begin to make smarter and more responsible choices as we head towards game two.