U.S. District Judge Reggie Walton set a new trial for April 17. Clemens attorney Rusty Hardin said he may appeal Walton's decision. Walton said if Clemens wants to do that, he must request an expedited review by the appeals court to avoid more delays in the case.
Clemens listened intently while both sides argued passionately over his fate, but only spoke briefly to tell Walton he would waive his right to a speedy trial because a member of his defense team has another trial scheduled this fall requiring the long delay in his case.
A prosecutor grew emotional as he took full blame for the first mistrial. And Clemens' attorney Michael Attanasio admitted he may sound angry in court because he is -- on behalf of his client. "By God, he doesn't deserve this," Attanasio said.
Walton said although he's concerned about the prosecution's violation of his orders by showing jurors inadmissible evidence, current law does not allow him to throw out the indictment. He said the Supreme Court has set a high bar -- Clemens needed to convince him that prosecutors intentionally goaded the ex-pitcher into requesting a mistrial. Walton said his review of case law found no defendant who has been able to meet that requirement.
Prosecutors argued they made an inadvertent mistake that caused the trial's quick end on its second day of testimony. They said that throwing out the indictment would violate society's interest in seeing violations of law dealt with at trial. Clemens' lawyer had argued that prosecutors shouldn't be rewarded with another chance. "This case should end," said Attanasio, who contended prosecutors deliberately flouted Walton's ruling.
At least one former teammate of Clemens expressed sympathy for his situation. "I feel bad that he had to go through it," the New York Yankees' captain and star shortstop Derek Jeter said. "I don't know the details; it's too bad he has to go through it."
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.
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.
Walton pointed out that the prosecutors were highly experienced and should have known their evidence and even if they forgot to adjust their exhibits, 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 trial attorneys Steven Durham and Daniel Butler, both of whom have been before him on other matters, but Walton said the record seemed to suggest it was intentional. "It's hard for me to reach any other conclusion," Walton said.
Durham responded with an emotional attempt to convince the judge he would never violate his orders "not in this case -- whether it's against Roger Clemens or Roger Jones." He said he let down his colleagues and a lot of other people and took full blame. "I made the mistake. It's on me," he said. He said he's been arguing cases in front of Walton for 17 years and knows he sets a high standard that he wouldn't attempt to violate.
"My father was in the courtroom on July 14," Durham said, his voice shaking. "I would never, never dishonor my family by violating the rule of the court. I would never do that."
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 whether prosecutors should pick up the tab for the first trial because of their errors.
"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?"
He said he didn't know if he has the authority to order such a payment, but he would consider it if Clemens wants to make a motion for payment.