What a fitting way for the Clemens saga to end, at least for now: The federal prosecutors failed to edit a bit of video being shown to the jury on Thursday morning, that contained info the presiding judge said couldn't be used as evidence.
The moment Judge Walton heard a reference to it, he huddled with prosecutors and defense counsel. The jury was asked to leave the courtroom as Walton proceeded to scold the feds, calling them worse than first-year law students.
Rusty Hardin, Clemens' counsel, hadn't made an objection as the tape rolled. The judge acted on his own. Hardin then gladly moved for the mistrial after Judge Walton reprimanded the prosecution.
Hardin got what he wanted and a mistrial was declared The jury was called back and told their obligation to the court had been fulfilled and the judge set dates for the two sides to make motions for and against a second trial.
Hardin will say that a second bite at the apple violates Roger Clemens' constitutional right against double jeopardy.
Many court observers don't think the judge will refuse to allow another trial, but if he had to decide tomorrow you'd have to bet that Clemens would be a free man.
Jeopardy attaches technically to Clemens after the first witness is called. It will be up to the judge to determine if the error made by prosecutors was egregious enough to consitute double jeopardy. If not a new jury will get its chance to watch what everyone hopes will be an edited tape.
The fuss was all about the government hearings at which Clemens testified in 2008. Out of that appearance and the questioning by feds prior to the hearing itself, came the 15 alleged false statements that are the subject of the trial.
Today, prosecutors showed video of the hearings, and included among the scenes was one in which a House member discussed statements made by Laura Pettite, wife of Andy.
Andy told his wife about a conversation with Clemens during which he allegedly admitted getting shot up with HGH. To bolster the validity of Pettite's statements, prosecutors wanted to put his wife on the stand.
The judge ruled prior to trial that Laura's statements were hearsay (she heard her husband say Clemens used, not Clemens himself) and prejudicial to the defense.
The prosecutors argued they were not introducing Mrs. Pettite's testimony to prove that Clemens is a liar, which would negate it being hearsay. They wanted to increase Pettite's credibility as one of the primary witnesses against his old teammate.
They lost, and even references to Pettite telling his wife about his convo with Roger had to be taken out of any evidence presented.
The feds knew this, but someone didn't edit the tape. The judge blew up about it and reminded the feds they dropped a verbal bomb during opening statements that included information also ruled inadmissible by the judge.
In this case, it's two strikes and you're out.
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