Thanks to a prosecutorial blunder of Bucknerian proportions, the Judge in the Roger Clemens perjury trial declared a mistrial today.
Thursday was the first day of testimony in the trial where Clemens was accused of lying before a congressional committee in February 2008 about using steroids and illegal performance enhancers. The gaffe by prosecutors was not only stunning in its simplicity -- it was just as jaw dropping in its duplication.
Clemens got a mistrial today thanks to the wife of one of his best friends.
Clemens friend and former teammate, Andy Pettitte, was set to testify that Clemens admitted to using illegal performance enhancers. Before the trial began U. S. District Judge Reggie Walton had ruled against the prosecution's desire to also use Pettitte's wife, Laura as a witness. Laura has said that her husband told her about Clemens use of the illegal drugs. Judge Watson ruled that her testimony would be hearsay and prejudicial and therefore would not be allowed.
Today, the prosecution showed the jury a video of Rep. Elijah Cummings (D-Md.) at the 2008 congressional hearings in which he and Clemens referred to Pettitte’s conversation with his wife. As if that wasn't enough, as Watson called the lawyers to the bench to express his displeasure, Laura Pettitte’s affidavit appeared on the courtroom monitor.
Judge Watson was livid and said, "I think that a first-year law student would know you can’t bolster the credibility of one witness with clearly inadmissible evidence,"
Clemens lawyer, Rusty Hardin, asked for the mistrial and Judge Watson quickly granted it. He did set a September 2 date to hear arguments about a re-trial. Hardin will argue that a retrial could constitute double jeopardy. The prosecution will argue that double-jeopardy does not apply in this case because the error, while profoundly stupid, does not go to the heart of the Government's case. That would be Clemens (and Pettitte's) former trainer Brian McNamee.
Either way, U.S. Attorney Steven Durham just became the Bill Buckner poster boy for future prosecutors.