UPDATE: JUDGE WALTON HAS DECLARED A MISTRIAL IN THE CASE. See more updates below.
Government prosecutors just made a huge mistake in their attempt to try Roger Clemens for perjury and it made lead to a mistrial.
ESPN’s TJ Quinn – who has been tweeting live from the courthouse throughout the trial – says that Judge Reggie Walton is furious with the prosecution team after they showed an exhibit to the jury that violated a pre-trial ruling on evidence.
Clemens is charged with lying to Congress about his use of performance enhancing drugs while playing baseball.
Quinn says that after much arguing with the lawyers, the judge has called for a break to consider ruling on this violation. If the jury has been unfairly tainted, he may have to declare a mistrial.
At issue is the testimony of Andy and Laura Pettitte. Andy is expected to be called to testify that Clemens admitted to him that he used performance enhancing drugs. The government also wants to call Laura Pettitte to back up Andy’s claim (since he told his wife what Clemens told him.) Both of them submitted affidavits before Congress submitting to that fact.
However, the Clemens defence team is expected to argue that Pettitte misunderstood Clemens. Therefore, it doesn’t matter what he told his wife, because his statement would have been incorrect.
In pre-trial rulings, Judge Walton agreed and said that unless the defence challenged Pettitte’s memory (not his understanding) then Laura Pettitte could not be called as a witness.
That brings us to today, when the prosecution displayed a video exhibit in front of the jury that specifically referenced Laura Pettitte’s sworn statements. The jury wasn’t supposed to know about them and now they do.
So not only have government lawyers introduced evidence that they weren’t supposed to, they violated a direct order from Judge Walton. For the second time. (The US Attorney, Steven Durham, argued that they prepared the exhibit before the judge’s ruling and simply forgot to change it)
Naturally, Judge Walton is not happy about it. He doesn’t want to undo all the time and effort they’ve put into the trial so far, but will have to decided if the jury has been unfairly prejudiced.
Before calling a break, Walton said, “I don’t see how I can unring the bell.”
11:50 UPDATE: Walton has indeed declared a mistrial. It took longer to pick a jury then it took for the actual trial to fall apart. Walton said a “first-year law student” shouldn’t have made the mistake that the US Attorneys did.
The testimony of Andy Pettitte was simply too important to the government’s case to let it be entered into evidence in such a haphazard and prejudicial way.
There will be a hearing on September 2 to determine whether Clemens would face double jeopardy, should the government elect to try him. Since it was mostly a procedural error and the jury never made a decision, there will probably be another trial.
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