Barring a retrial for Roger Clemens would hand the former baseball star “an unwarranted windfall” from inadvertent mistakes made during the first case against him, federal prosecutors argued in a brief filed Friday.
The brief came in response to a motion filed by Clemens’ attorneys seeking to prevent a retrial by arguing the government intentionally violated rules imposed by District Judge Reggie Walton, who declared a mistrial July 14 after prosecutors played a video that contained evidence Walton had previously ruled inadmissible.
That evidence included testimony from the wife of former pitcher Andy Pettitte, which suggested that Clemens had talked with Pettitte about using steroids. The video shown by prosecutors – a recording of Clemens’ 2008 testimony before Congress – showed Rep. Elijah E. Cummings (D-Md.) making a reference to the conversation.
The video was strike two for the prosecution, which had also alluded to the conversation during opening statements.
But in their motion, Justice Department attorneys said the video had already been prepared when Walton made his ruling on admissibility, and that they hadn’t looked to see whether a reference might be buried in a question from the congressman.
“The government’s error was a mistake, not misconduct, and certainly not misconduct intended to provoke a mistrial,” prosecutors wrote. “As government counsel informed this court when the video clip mistake occurred: ‘There was no intention to run afoul of any court ruling.’”
A motion hearing on the issue is scheduled for Sept. 2.
