The trial of the former superstar pitcher was halted on the second day of testimony in July when Judge Reggie Walton declared a mistrial because the government presented a video excerpt to the jury that had been declared inadmissible in a pretrial ruling.
In a response to the defense motion to dismiss the indictment against Clemens, the government last week argued the presentation of that evidence was unintentional and that a new trial should begin.
In its reply Friday, defense once again cast doubt upon the government's intent, on one hand complimenting Assistant U.S. Attorneys Steven Durham and Daniel Butler while questioning their motives on the other.
"When careful, deliberate, and detail-oriented prosecutors stand idle like the cat that ate the canary while admittedly improper evidence is played for a jury, any innocent explanation for the prosecutors' conduct is rendered implausible," the defense reply read.
Walton has scheduled a Sept. 2 hearing at the U.S. District Courthouse in Washington to hear oral arguments and likely rule on whether the trial will start over again or the case will be dismissed.
Clemens, who won 354 games and a record seven Cy Young Awards in his 24-year career, was indicted last year on federal charges of perjury, giving false statements and obstruction of Congress for claiming in a 2008 hearing before the House Committee on Oversight and Government Reform and an earlier deposition that he never used performance-enhancing drugs.
On July 14, during the second day of testimony of a trial that was expected to last four to six weeks, several video excerpts from the 2008 hearings, including a scrolling transcript, were shown in the courtroom during testimony from Phil Barnett, former staff director for the congressional committee. Prosecutors "ran afoul" of the pretrial ruling when one of the video presentations included the mention by Rep. Elijah Cummings (D-Md.) of an affidavit Laura Pettitte gave in support of her husband Andy Pettitte's claims that he'd heard his friend and teammate Clemens discuss using human growth hormone. After Walton halted the proceedings, a freeze-frame of Cummings with a portion of his statements about Laura Pettitte remained on the screens in front of jurors for several minutes.
"If the presentation of Mrs. Pettitte's statements to the jury was an accident, the natural response would have been for the prosecutors to immediately acknowledge the oversight. That never happened," the defense reply said.
John Schlegel is a national reporter for MLB.com. This story was not subject to the approval of Major League Baseball or its clubs.