In October 2010, I wrote in DRI’s The Business Suit that the upcoming trial of Roger Clemens for allegedly lying to Congress about his non-use of performance-enhancing drugs was an enormous waste of time and taxpayer resources, and more than a little hypocritical. On Thursday, July 14, what already was a standard government fiasco morphed into a full-blown disaster. Federal prosecutors made a mistake that resulted in the judge declaring a mistrial, which hopefully means the end of this sorry affair.
The critical facts are these:
• In early 2008, former Clemens teammate, Andy Pettitte, told Congress that Clemens had once admitted to Pettitte that Clemens had used human growth hormone. Mr. Pettitte also testified that he subsequently told his wife, Laura, about Clemens' admission. Laura confirmed that conversation during her own Congressional deposition.
• On February 13, 2008, Clemens testified before Congress, during which Rep. Elijah Cummings' (D-MD) read that portion of Laura Pettitte’s deposition transcript confirming Andy's account of Clemens' alleged admission. In response, Clemens testified that Pettitte “misremembered” his conversation with Clemens.
• In a July 7, 2011 pre-trial ruling, Judge Reggie B. Walton declared as inadmissible hearsay evidence of any conversations between Andy and Laura Pettitte about Clemens’ alleged use of performance-enhancing drugs.
• On July 14, 2011 despite Judge Walton's decision, prosecutors played a video excerpt from Clemens' February 2008 testimony, including that portion involving Rep. Cummings' description of Laura Pettittee confirming Andy Pettitte’s account of Clemens' alleged admission. Judge Walton declared a mistrial, stating “I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,” particularly since Clemens has said that Pettitte’s recollection of their conversation was wrong.
How could prosecutors make such a basic mistake? This is not an inexperienced group, although it arguably is overzealous and may be politically motivated. Although he was not in the courtroom during the ruling, Ronald C. Machen Jr., currently leads the Washington, D.C. branch of the U.S. Attorney's Office. A former partner at the law firm of Wilmer Cutler Pickering Hale and Dorr, Machen was recommended for the job by Eleanor Holmes Norton (D-D.C.), who submitted Machen’s name to President Obama. Machen reportedly called Obama a "legend" at Harvard and, in 2003, was one of the first people to donate to Obama's U.S. Senate campaign, long before Obama emerged on the national political stage. Steven Durham, a graduate of Northwestern University School of Law, joined the D.C. U.S. Attorney's Office in 1992 and has been in charge of its public corruption prosecutions since 2007. Daniel Butler, who joined the justice department in 1981, has been specializing in fraud and public corruption for the past seven years and led the successful prosecution of Deborah Jeane Palfrey, known as the "D.C. Madam", in 2008. All three men have received glowing support by friends and colleagues.
In their defense, Durham and Butler argued that they had turned over the videos to the defense in early May, and Clemens’ counsel had not objected when those videos were introduced into evidence on the morning of the July 14. Regardless, failing to redact the barred footage from the video was a clear violation of the court’s order, and Judge Walton does not appear convinced that this was an innocent mistake, stating "Government counsel [should] not do whatever they can get away with doing." Further, this is not the first exercise of questionable judgment by the prosecution since the case commenced. Clemens has no prior criminal record and has been accused of no violent crime. Yet, immediately after Clemens’ indictment, the prosecution moved that Clemens, allegedly a flight risk, surrender his passport. Thankfully, Judge Walton rejected the motion.
Judge Walton has set a date of September 2 for the parties to submit motions regarding whether Clemens should be retried. Legal scholars are split as to whether a retrial would violate Clemens constitutional protection against double jeopardy. Unfortunately, millions of dollars have already been lost in preparing for the first trial. Judge Walton will have done the country a favor by dismissing a case that reportedly would have taken four weeks of the court’s time and involved a minimum of 45 witnesses, including major league baseball players, employees of several teams, as well as officials of the House of Representatives. Hopefully sanity will prevail, and Machen’s office will not seek a retrial and will instead turn its attention to more pressing matters, like prosecuting murders, rapists, and terrorists.
There is a lesson to be learned here both for trial attorneys and their clients. A very basic mistake made by at least two experienced and well-respected prosecutors resulted in a catastrophe that ultimately may cost one or more of those attorneys their jobs. Assuming the “mistake” was just that, all the attorneys needed do was carefully review the videos that they intended to show jurors. Perhaps they were too busy to do so and assigned the job to an inexperienced lower-level staff member, secretary, or intern. Auditors who refuse to pay attorneys for reviewing videos of prior litigation-related events or who declare as non-billable “administrative” work those communications between attorneys and audio-video professionals about recordings to be presented as evidence at trial should strongly reconsider. As many of us already know, these tasks are often mundane, but critical to success in the courtroom.
Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Construction Law, and Commercial Litigation Committees, Chairman of DRI's Sports Law Specialized Litigation Group, and a member of the Sporting Goods Manufacturers Association Legal Task Force.