Bloomberg News

Clemens Asks Judge to Bar U.S. From Retrying Perjury Case

July 29, 2011

(Updates with excerpt from filing in third paragraph.)

July 29 (Bloomberg) -- Major League Baseball veteran Roger Clemens asked a federal judge to bar prosecutors from retrying him on charges that he lied to Congress, arguing that under the Constitution he can’t face a jury twice for the same crime.

Clemens, 48, filed a motion to dismiss the indictment against him today in U.S. district court in Washington. U.S. District Judge Reggie Walton ended the first trial July 14 after prosecutors showed jurors a video clip containing information he had ruled couldn’t be part of the government’s perjury and obstruction case.

Clemens’s lawyer, Rusty Hardin, said in court papers that the government’s conduct “was no accident.” He alleged the experienced prosecutors on the case had intentionally provoked a mistrial after setbacks that “cast doubt” on whether Clemens could be convicted.

“A second trial in which the government can improve its jury selection, hone its trial strategy, and tackle issues raised by the defense in opening,” would reward the government’s misconduct and subject Clemens to an unconstitutional retrial, said Hardin, who asked for the mistrial during the second day of testimony.

Yankees Pitcher

Walton raised the possibility that the government might not be able to bring the former New York Yankees pitcher before a new jury when he stopped the trial. He said at the time that he would have to assess whether the government, “having precipitated this mistrial,” could retry Clemens or whether “re-prosecution is barred by double jeopardy.”

The government has until Aug. 19 to respond to Clemens’ motion. Walton scheduled a Sept. 2 hearing to decide whether the seven-time Cy Young Award winner will be tried again.

“We’re limited in what we can say beyond what is formally submitted or stated to the court,” Bill Miller, a spokesman for the U.S. Attorney’s Office in Washington, said, citing a gag order imposed by the judge. “Our response will come on or before August 19.”

Clemens 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’ use of performance-enhancing drugs. If convicted on all charges, he faces as long as 30 years in prison and a $1.5 million fine.

Statements to Congress

The charges stem from Clemens’s statements to the House Committee on Oversight and Government Reform in February 2008, in an interview with committee staff and later at a public hearing. Clemens, under oath, denied ever using anabolic steroids or HGH, according to the indictment.

Walton said that prosecutors violated a court order when they showed the jury of 10 women and two men a video clip of a 2008 congressional hearing where the wife of government witness Andy Pettitte was discussed. Walton ruled earlier that no references to Laura Pettitte, or an affidavit she gave Congress, could be made during the government’s case.

At the start of the trial, prosecutors said that Andy Pettitte, a former teammate, would testify about his close relationship with Clemens and how Clemens told him in 1999 or 2000 that he had used HGH. Clemens told Congress that Pettitte misheard the conversation.

‘Going Badly’

Hardin argued in today’s motion that prosecutors wanted a mistrial because the case against Clemens was “going badly” in three ways.

Walton had limited the evidence from other players and Laura Pettitte, and then prosecutors found themselves unprepared to address newly discovered evidence that undermined the credibility of the government’s key witness, Clemens’s former trainer, Brian McNamee, Hardin said.

In addition, Walton’s questions about the way Clemens had been charged led prosecutors to revise their opening statement to leave out any discussion of what had been “a prominent alleged obstructive act in the indictment,” Hardin wrote.

The case is U.S. v. Clemens, 10-cr-00223, U.S. District Court, District of Columbia (Washington).

--With assistance from Sara Forden in Washington. Editor: Fred Strasser, Andrew Dunn

To contact the reporter on this story: Tom Schoenberg in federal court in Washington at

To contact the editor responsible for this story: Michael Hytha at

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