Former Major League Baseball pitcher Roger Clemens arrives at federal court in Washington, Friday Sept. 2, 2011. Clemens was due in court to find out whether he'll face a second trial on charges that he lied about using performance-enhancing drugs. (AP Photo/Jose Luis Magana)
Former Major League Baseball pitcher Roger Clemens arrives at federal court in Washington, Friday Sept. 2, 2011. Clemens was due in court to find out whether he'll face a second trial on charges that he lied about using performance-enhancing drugs. (AP Photo/Jose Luis Magana)
Former Major League Baseball pitcher Roger Clemens, center, and his attorney Rusty Hardin, arrive at federal court in Washington, Friday Sept. 2, 2011. Clemens was due in court to find out whether he'll face a second trial on charges that he lied about using performance-enhancing drugs. (AP Photo/Jose Luis Magana)
Former Major League Baseball pitcher Roger Clemens, right, and his attorney Rusty Hardin, arrive at federal court in Washington, Friday Sept. 2, 2011. Clemens was due in court to find out whether he'll face a second trial on charges that he lied about using performance-enhancing drugs. (AP Photo/Jose Luis Magana)
WASHINGTON (AP) ? The judge overseeing baseball star Roger Clemens' perjury case expressed concern Friday that prosecutors intentionally violated his orders and caused a mistrial in the high-profile case and asked why the former pitching star should have to pay the costs of the government's errors.
Walton is tasked with deciding whether Clemens should be put on trial a second time or have all charges against him dropped and heard arguments from both sides in court. Clemens' lawyer argued that prosecutors shouldn't be rewarded with another chance, while the government's attorney said tossing the indictment would be an extreme response to their inadvertent mistake.
"This case should end," said Clemens attorney Michael Attanasio. "He's been put through enough."
Steven Durham and Daniel Butler, the two assistant U.S. attorneys who tried the case, sat silently while the government's side was argued by David Goodhand, an attorney in their office's appellate division who joined after the mistrial. Goodhand said throwing out the indictment would be a "very significant thing" and violate society's interest that violations of law are dealt with at trial.
"There was an inadvertent mistake," Goodhand said. "It is a mistake that we regret, but it is nonetheless a mistake."
Walton stopped the first trial on July 14 after prosecutors played a videotape of Clemens' 2008 testimony to a House committee in which he denied ever using performance-enhancing drugs. Clemens is charged with lying under oath when he made those denials.
On the tape prosecutors were showing to jurors, Rep. Elijah Cummings, D-Md., pointed out that Clemens' good friend and teammate, Andy Pettitte, says Clemens admitted using human growth hormone in a private conversation in 1999 or 2000. Clemens responded that Pettitte "misheard" or "misremembered" their conversation. But Cummings said Pettitte's wife, Laura, had given lawmakers an affidavit saying that her husband told her about the conversation with Clemens at the time it happened.
Walton had ruled before the trial began that Laura Pettitte's comments were inadmissible hearsay because she didn't speak to Clemens directly. When jurors began to hear about her statement, Walton quickly cut off the tape and admonished prosecutors.
At the time prosecutors did not say it was a mistake, but in recent filings to the court they said they said they mistakenly forgot to scrub their exhibits to comply with the judge's order, made of the eve of the trial, in the press of other matters like jury selection and opening arguments.
Walton pointed out that the prosecutors were highly experienced and should have known their evidence and even if they forgot to adjust them, they should have stopped the tape when the inadmissible statements were about to be made. He said the fact they didn't would "tend to suggest there was willful intent."
He later said he wants to believe it was a mistake because he has high respect for Durham and Butler, both of whom have been before him on other matters, but the record seemed to suggest it was intentional. "It's hard for me to reach any other conclusion," Walton said.
Goodhand responded there was no willful intent. He pointed out that Durham opposed the motion for a mistrial at the time. He said the comments that Cummings made about Laura Pettitte were only about 15 seconds of a much longer video being shown to jurors.
"You cannot take from any action in the course of 15 seconds the intent to goad the defense into a mistrial," Goodhand said. Instead, he said the short time was more evidence suggesting they made a mistake.
Attanasio repeatedly accused prosecutors of having a "win at all costs mentality" with all the media attention to the case. "There is no doubt, no doubt, this was a calculated effort to make an end run around this court's ruling," Attanasio said.
Clemens, in a blue shirt and tie and gray suit, sat straight up at the defense table and listened intently to the arguments but did not speak.
Attanasio pointed out that although Clemens made a lot of money during his major league career ? about $165 million, a figure the attorney did not mention ? he is 47 years old and needs to support his family for the rest of his life on it. He said Clemens shouldn't have to pay for another trial. Walton agreed that "it doesn't seem fair" and questioned Goodhand whether prosecutors should pick up the tab if he orders another trial.
"Obviously it costs Mr. Clemens a lot of money," Walton said. "Should the United States government have to cough up the money to pay for that?"
Goodhand responded that it's the judge's prerogative to make such a determination, but he didn't know of any precedent for it.
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