— A judge in Washington, DC, might decide as early as Friday whether the federal government will get another chance to put pitching star Roger Clemens on trial, after prosecutors bungled the case earlier this summer on charges involving baseball's steroids scandal.
Clemens is accused of lying three years ago when he told a congressional hearing investing abuse of performance-enhancing drugs that he never used steroids or human growth hormone. The judge declared a mistrial in July after prosecutors revealed testimony to the jury that had earlier been ruled inadmissible.
Federal District Court Judge Reggie Walton must decide whether the prosecution's error was so serious that putting Clemens through a second trial would violate the Constitution's ban on double jeopardy.
If the case is thrown out, Clemens could not be prosecuted again for the same charges. Such a decision would be a further setback to the federal government's efforts to pursue steroid abuse in Major League Baseball.
In April, the government's separate case against Barry Bonds ended with a fizzle when jurors deadlocked on the charges most directly connected to allegations of steroid use. They instead found him guilty of giving misleading answers to a grand jury.
Under federal rules, prosecutors cannot get another chance to put Clemens on trial if the judge determines they intentionally caused the mistrial July 14.
"The government's conduct here was no accident," said Rusty Hardin, Clemens' lawyer, in court filings urging the judge to bar another trial.
Hardin accuses the prosecutors, blocked from introducing evidence helpful to the government, of intentionally forcing a mistrial because they "suffered a series of setbacks that cast doubt on the case against Mr. Clemens."
They should not be rewarded with a second trial, Hardin says, "in which the government can improve its jury selection, hone its trial strategy, and tackle issues raised by the defense" in its opening statement.
But Justice Department lawyers argue that the mistrial was caused by a simple mistake when testimony had just begun, “not misconduct, and certainly not misconduct intended to provoke a mistrial.”
"There was no possible reason why the government would have wanted a mistrial on only the second day of this multi-week trial," the government lawyers say in their court filings.
Clemens was unequivocal when he testified before a House of Representatives hearing in 2008.
"Let me be clear. I have never taken steroids or HGH," he told committee members.
But prosecutors accuse him of using the drugs from 1998 through 2001, while playing for the Toronto Blue Jays and the New York Yankees.
His chief accuser, Brian McNamee, who served Clemens as a trainer for nearly a decade, told the same hearing, "I injected him on numerous occasions with steroids and human growth hormone."