Roger Clemens' Fishy Mistrial

by John M. Curtis
(310) 204-8700

Copyright July 15, 2011
All Rights Reserved.                                         

              After Major League Baseball’s lifetime and single-season homerun king Barry Bonds went down to a single count of obstruction of justice April 13, the buzz was already starting about the July 6 trial of seven-time Cy Young winner Roger Clemens.  It only took two days for U.S. District Court Judge Reggie Walton to declare a mistrial after Asst. U.S. Atty. Steven Durham played a video clip from Clemens’ 2008 testimony before Congress of Andy Petite’s affidavit of his wife Laura admitting her husband told her Clemens used steroids. In pretrial motions, Walton expressly forbid prosecutors from playing the Petite affidavit to jurors, due to its prejudicial hearsay content.  When prosecutors played the forbidden video clip, Clemens’ defense attorney Rusty Hardin practically jumped for joy, realizing that jurors were exposed to exactly what Walton had banned.

            Realizing the egregious mistake, Hardin promptly asked Walton for a mistrial.  “I’m afraid we have to ask for a mistrial,” said Hardin, after the jury was removed from the room.  Jurors were treated to highlighted testimony from Petite’s wife admitting her husband told her Clemens used steroids.  Hardin argued successfully to Walton that the jury was contaminated with the exact prejudicial content Walton sought to avoid in pretrial rulings.  Because of the Constitution’s double jeopardy rule, Clemens trial might be over permanently.  Walton scheduled a hearing Sept. 2 to rule on whether he would go ahead with a new trial.  Hardin is expected to invoke double jeopardy to end the government’s case forever.  When Clemens testified Feb. 14, 2008 before Rep. Henry Waxman’s House Oversight and Government Reform Committee, he emphatically denied using steroids

               Major League Baseball turned a blind eye to steroids from the 1980s to the late-1990s when former Oakland A’s leftfielder Jose Canseco exposed the dirty secret in a 2005 tell-all book, “Juiced:  Wild Times, Rampant ‘Roids,’ Smash Hits and How Baseball Got Big.”  Canseco was, of course, talking about himself and his teammate Mark McGwire who grew monstrous with steroids and began smashing MLB’s homerun records.  It was only after McGwire was traded to St. Louis and broke Roger Maris’ 27-year-old single-season homerun record [61] Sept. 8, 1998, raising speculation about steroids.  McGwire ended the season with 70 homeruns.  A few years later San Francisco Giant slugger Barry Bonds grew to epic proportions and obliterated McGwire’s record, hitting his 73rd homerun Oct 7, 2001.  While no proof existed then, the steroid controversy spiraled out of control. 

            Bonds’ records prompted San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada to investigate Bonds’ trainer Greg Anderson an his steroid supplier, BALCO president Victor Conte, eventually publishing “Game of Shadows” in 2006, linking Bonds with steroid use.  Congress was so fed up with MLB after the 2006 season they commissioned former U.S. Sen. and Mideast Peace Envoy George Mitchell (D-Maine) to investigate MLB’s steroid problem.  When the Mitchell Report came out Dec. 14, 2007, the Congress had the leverage to force MLB to enforce a strict steroid ban or face Congressional legislation.  Of all of Mitchell’s sources, none was more credible than Clemens’ trainer Brian McAffee, who admitted to administering steroids to the man known as “the rocket.”  Before the July 14 mistrial, Clemens’ faced an uphill battle denying steroid use.

            Why Asst. U.S. Atty. Steven Durham violated Walton’s strict ban on Petite’s affidavit is anyone’s guess.  It makes no sense that Durham didn’t understand the consequences.  Between now and Walton’s Sept. 2 hearing, it only makes sense to investigate Durham, much the same way professional boxing investigates a fighter when they take a dive.  If Durham were paid off to blow the government’s case, then the public has a right to know.  There’s simply no place for corrupt prosecutors or, for that matter, corrupt officials in professional sports.  Knowing Walton’s ban and the rules of evidence, Durham couldn’t have made as simple mistake.  Whether Walton buys Hardin’s double jeopardy argument is also unknown.  It’s difficult to talk of double jeopardy when a mistrial is declared on Day 2.  Without clearing Clemens’ name, Hardin is glad to take the mistrial.

            Given Judge Walton specific instructions about the admissibility of certain evidence before trial, the court must look into potential foul play.  There’s simply no coherent explanation other than corruption for Durham’s conduct.  Whether prosecutors will get another short at Clemens is anyone’s guess.  Hardin’s double jeopardy defense could very well preclude another trial.  Walton must determine whether Durham’s misconduct was deliberate or inadvertent and then decide whether the double jeopardy statute applies to a two-day-old trial.  “I think a first-year law student would know you can’t bolster the credibility of a witness with clearly inadmissible evidence,” said Walton scolding Durham.  Because Durham was not a neophyte, the court must determine whether something fishy took place.  Before the Sept. 2 hearing, Walton must get to the bottom of what really happened.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.

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