Yesterday afternoon, multiple media outlets broke the news that U.S. District Judge Reggie Walton had declared the Roger Clemens’ perjury trial—just two days into witness testimony—a mistrial due to improper prosecutorial conduct. Here’s the gist of what transpired: Judge Walton clearly understood entering the trial that testimony by Clemens’ former teammate Andy Pettitte (a future witness for the prosecution) would likely dictate the outcome of the trial. Pettitte was scheduled to testify that Clemens represented to him in 1999 or 2000 that Clemens actually used human growth hormone—a statement in complete contradiction to Clemens’ prior testimony in 2008 before the Congressional House Oversight and Government Reform Committee. Had the prosecution sufficiently established this contradiction, the jury likely would have found Clemens guilty of perjury, and the Government would have prevailed in its “fight” against banned performance enhancing substances. However, the prosecution royally screwed up in the following manner before it could even place Pettitte on the stand:
During the first few days of trial, the prosecution demonstrated that it intended to initially set a foundation concerning Clemens’ congressional testimony prior to putting on the witness stand important witnesses, such as Pettitte, who would draw a stark contrast between Clemens’ congressional testimony and the supposed truth. As part of this tactic, yesterday morning, the prosecution played to the jury a video of Clemens’ 2008 testimony, in which Representative Elijah Cummings (D-Md.) described Pettitte as being “credible” and then made the following statement about an affidavit provided to congress by Pettitte’s wife Laura: “Let me read to you what his wife said in her affidavit. I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones.”
To agree with and quote District Judge Walton, “I think a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence.” From the point of view of a former first-year law student and now an attorney, I’ll explain to you the problem with what the prosecution did. Apparently, the other media outlets think America is too dumb to understand simple evidentiary rules.
The primary principle you need to understand is “hearsay,” which is an out-of-court statement used to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible in a court of law. Here, the prosecution attempted—maybe by accident—to use the out-of-court statements of Rep. Cummings and Pettitte’s wife to (i) add credibility to Pettitte’s character; and (ii) corroborate/bolster Pettitte’s future testimony that Clemens previously confessed about using human growth hormones. So you’re probably thinking to yourself, isn’t Clemens’ testimony before congress also hearsay, and therefore inadmissible? Well, no. As an exception to the hearsay rules, generally, former testimony of an individual is admissible, so long as the testimony was provided under certain conditions. Additionally, an admission by a party-opponent—i.e., a prior statement by a party (i.e., Clemens) offered as evidence against him/her—is also generally admissible. As a result of the prosecution’s actions, the jury saw and heard evidence that (i) should not have been admitted; (ii) was certainly prejudicial to Clemens; and (iii) would have likely prevented the court from providing Clemens a fair trial. What’s more, the prosecution had already been informed by Judge Walton that it could not call Pettitte’s wife as a witness because she never actually spoke with Clemens. Her testimony would lack credibility because she would be providing a perception of Clemens based solely on hearsay!
Nonetheless, stay tuned. These prosecutors may get another bite at the apple. Should Judge Walton determine on September 2nd that a new trial would not violate Clemens’ protection via double jeopardy, we could watch these same bumbling idiots present the same case before the court and this country in a couple months. Sigh…