Mistrial Declared In Clemens' Perjury Trial

A federal judge in Washington, D.C., declared a mistrial Thursday in the case of Roger Clemens, the legendary pitcher accused of lying to Congress about his use of performance-enhancing drugs. The judge said the prosecution had exposed the jury to evidence that the judge had already ruled inadmissible. Michele Norris talks with NPR's Nina Totenberg about what happened in the courtroom.

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MICHELE NORRIS, host:

Roger Clemens walked out of a federal courtroom today far earlier than expected after the judge declared a mistrial. The judge said prosecutors for the second time had exposed the jury to inadmissible evidence. The baseball star is accused of lying to Congress when he denied using steroids, or human growth hormone, known as HGH.

NPR legal affairs correspondent Nina Totenberg is covering this story for us. She's here in the studio.

Nina, what happened?

NINA TOTENBERG: Well, understand that there are two key witnesses for the prosecution in this case. One is Clemens' trainer, Brian McNamee, who said he injected Clemens with steroids and HGH, but who has a history that undermines his credibility. The other is Clemens' close personal friend, fellow pitching star Andy Pettitte. Pettitte says that Clemens once confided in him that he used HGH.

Clemens doesn't say that Pettitte is lying. He says that Pettitte misheard or misunderstood him. Well, the prosecution wanted to have Pettitte's wife, Laura, testify that her husband told her about this conversation and the judge said he wouldn't allow that since Mrs. Pettitte didn't hear the conversation, had no independent knowledge of it, or as Perry Mason would say, the testimony would be hearsay.

But today, on the second day of the trial, the prosecution was playing video of Clemens' testimony before Congress when he was being asked about Laura Pettitte's deposition. And the judge interrupted the proceedings to call the lawyers to the bench, they talked for several minutes, at which point Clemens' lawyer pointed out that the video had remained on the screen in front of the jurors during those several minutes and the jurors were seeing a transcript of what had been said in that video running at the bottom of the screen.

And understand that each juror has a computer screen in the jury box sort of like the screens you have on an airplane that you flip up to watch a movie. So while the private conference is going on with the judge, the prosecutors had left a very clear account of Laura Pettitte's testimony, testimony that had been banned.

Sitting right there in front of the jurors, a transcript in which she says, Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones. And this, after Judge Reggie Walton had instructed the lawyers to redact anything like this.

NORRIS: So while all this testimony that the jurors are not supposed to be seeing is right in front of them on those little screens, presumably, at this point, the judge would send the jury out of the courtroom?

TOTENBERG: Yep. And he went ballistic. His voice raised in exasperation and anger. He said it was the second time the prosecution had disregarded his orders. Yesterday, in opening statements, the prosecutor told jurors he was going to call a series of baseball players to talk about their use of steroids and HGH. This, despite the fact that the judge had previously said he wouldn't allow that testimony because it would be subject to - it would subject Clemens to guilt by association.

Yesterday's mishap was corrected by the judge instructing the jury just to regard what the prosecutor had said. Today's error Judge Walton clearly considered much worse. Calling Pettitte a critical witness, he said, a first year law student would know you can't bolster the credibility of one witness with clearly inadmissible evidence. The prosecutors then said the problem could be fixed by instructing the jury to disregard what they'd seen, but Walton said, I don't see how I can unring this bell.

And he left the bench saying he wanted to consult with colleagues about what to do. When he returned, he called the jurors in, thanked them, declared a mistrial. If this man got convicted, he would go to jail, Walton said. And because the prosecutors broke the rules, the ability of Mr. Clemens to get a fair trial with this jury would be very difficult, if not impossible.

NORRIS: Nina, what happens now? Do they just select another jury and start all over again?

TOTENBERG: Well, that's the question, Michele. Normally, a mistrial doesn't prevent a second trial, but the Supreme Court has said that if the prosecution's misconduct goads - and that's the word the Supreme Court used -goads the defense into asking for a mistrial, there can be no second trial. And that is essentially what I expect the defense will argue happened here. There's going to be a hearing in September and we'll probably know shortly after that.

NORRIS: That's NPR's Nina Totenberg. Nina, thank you very much.

TOTENBERG: Thank you.

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