Bloomberg News

Clemens Prosecutors Take Second Shot at Perjury Retrial

April 13, 2012

Former Major League Baseball pitcher Roger Clemens arrives for a hearing at US District Court in Washington on Sept. 2, 2011. Photographer: Saul Loeb/AFP/Getty Images

Former Major League Baseball pitcher Roger Clemens arrives for a hearing at US District Court in Washington on Sept. 2, 2011. Photographer: Saul Loeb/AFP/Getty Images

Roger Clemens, the former New York Yankees pitcher accused of lying about steroid use, saw just two days of the government’s case against him last year before a prosecution error put an end to his perjury trial.

None of the key witnesses had taken the stand, leaving each side with little preview of the opposition’s strategy as Clemens’s retrial is set to begin next week in federal court in Washington.

“In this case, because the trial started, then stopped as quickly as it did, I’m not sure there’s a huge advantage to either side,” said Benjamin Brafman, a New York lawyer who successfully defended former International Monetary Fund chief Dominique Strauss-Kahn against rape charges.

The last nine months have produced some twists and turns, however, including dozens of new witness interviews and a bulky stack of documents and transcripts that Clemens’ lawyer, Rusty Hardin, said may alter the course of the new trial for the seven-time Cy Young award winner, which begins with jury selection on April 16.

“They are getting a do-over and they are getting a do-over as a result of their own misconduct,” Hardin said during a pretrial hearing today in federal court in Washington.

He suggested, however, that the new interviews may also raise additional questions about a key prosecution witness, Brian McNamee, Clemens’ former trainer.

Sealed Information

U.S. District Judge Reggie Walton agreed today to keep under seal a motion outlining information about McNamee, some of which related to an investigation of a sexual assault that allegedly occurred in Florida in 2001. Prosecutors said that matter and several others should be off-limits during the trial.

Prosecutors said in June that McNamee was questioned by police in October 2001 about an incident at a hotel in St. Petersburg, Florida. McNamee, who at the time was employed by the Yankees, “falsely denied” knowing another Yankees employee or how the woman who was the alleged victim of the assault became incoherent, prosecutors said in a court filing. McNamee was never arrested or charged with an offense.

Clemens, who played for four different teams over a 23-year career, 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’ alleged use of performance-enhancing drugs. If convicted on all counts, Clemens, 49, would face as long as 30 years in prison and a $1.5 million fine.

‘Confusion and Sympathy’

Walton declared a mistrial in July after finding that prosecutors improperly showed the jury a video clip of a 2008 congressional hearing in which the wife of government witness Andy Pettitte was discussed. Walton had ruled earlier that no references to Laura Pettitte, or an affidavit she gave Congress, could be made during the government’s case.

Prosecutors asked Walton on March 19 to bar Clemens from telling jurors about the collapse of his first trial, claiming it could “foster confusion and sympathy.”

They also asked Walton to prevent Clemens’s defense from repeating certain statements that were made to jurors in the first trial.

Clemens argues in court papers that prosecutors are trying to “preemptively attack” his defense with “cherry-picked and out-of-context portions” of his lawyer’s opening statement from the first trial, which the government didn’t object to at the time.

Gag Order

In August 2010, Walton issued a gag order covering Clemens, his attorneys, prosecutors and potential witnesses, warning them not to make prejudicial comments about the case in public.

Opening statements in the first trial signaled a defense focused almost exclusively on McNamee, the government’s only eyewitness. Clemens, who admits to being injected by McNamee, said he thought he was receiving vitamins and other permissible substances.

Hardin’s comments today suggested McNamee’s credibility will again be key.

“Roger Clemens’s only crime was having the poor judgment to stay connected to Brian McNamee,” Hardin told jurors in last year’s trial. “Evidence that this guy used steroids and HGH is so inconsistent with his career in the league that there is no way he would have done it.”

Congressional Investigation

Hardin, who objected to the seal of the prosecution’s motion, described it as a list of eight things related to McNamee that the defense should be barred from bringing before jurors.

A congressional investigation into the use of performance enhancing drugs in Major League Baseball concluded Clemens used banned substances toward the end of his 24-year career. Prosecutors said about 45 witnesses will support their contention that Clemens knowingly lied about drug use in a congressional interview and a public hearing in February 2008. Clemens has denied wrongdoing.

The trial, scheduled to last four to six weeks, will feature testimony from Clemens’s wife, former congressional investigators and Major League Baseball players, including former Yankees teammates Pettitte, Mike Stanton and Chuck Knoblauch.

Pettitte to Testify

Pettitte, the former All-Star pitcher who signed a minor league contract after a one-season retirement, will testify about his own use of human growth hormone and McNamee’s assistance with injections, the government said in a March 23 filing.

While MacNamee may be the defense target, Pettitte is the linchpin to the government’s efforts, said Bernie Grimm, a Washington defense lawyer at Cozen O’Connor who isn’t involved in the case.

“This is not a ‘Whodunit’ case,” Grimm said in an interview. “Pettitte will be the deciding factor.”

Pettitte’s importance as a witness was a factor in Walton’s decision to order the mistrial.

“I think Mr. Pettitte’s testimony is going to be critical as to whether this man goes to prison,” Walton said about 45 minutes before declaring a mistrial on July 14.

Clemens has denied drug use since former U.S. Senator George Mitchell released a report on steroids in Major League Baseball on Dec. 13, 2007, that named Clemens and 85 other players. In 2008 testimony to Congress, Clemens repeatedly maintained his denial of ever using banned substances.

Steroids, HGH

The Federal Bureau of Investigation opened an inquiry after the committee’s leaders told then-U.S. Attorney General Michael Mukasey in writing that Clemens may have lied under oath.

Clemens’s denials were contradicted by McNamee, who said he injected the athlete with steroids and HGH. Pettitte, meanwhile, told the committee that Clemens admitted to him in 1999 or 2000 that he used HGH, considered a performance-enhancing drug for its ability to grow muscle and aid recovery after training.

Clemens testified to Congress that McNamee injected him with only vitamin B-12 and the painkiller Lidocaine. Pettitte, who played alongside Clemens with the Yankees and Houston Astros, “misremembers” a conversation they had about HGH, Clemens said.

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

To contact the reporter on this story: Tom Schoenberg in federal court in Washington at tschoenberg@bloomberg.net; Michael Riley in Washington at mriley17@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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