After hearing arguments from both sides Friday in U.S. District Court, Judge Reggie Walton ruled that double jeopardy does not apply in this case, and that despite being troubled with prosecutors showing the jury evidence he had ruled inadmissible, he could not find that they intentionally did it to derail the trial, as defense had argued.
Finding no case law to allow a dismissal based on the circumstances, Walton made his ruling at the conclusion of about 90 minutes of arguments from defense attorney Mark Attanasio and government appellate attorney David Goodhand -- and an at-times emotional apology to all parties involved by Assistant U.S. Attorney Steven Durham, who claimed total responsibility for the barred evidence being shown to the jury.
"I want to apologize to the court and to the defense and to Mr. Clemens. It was our responsibility, and let me be clear, it was my responsibility. ... I made the mistake. It's on me," Durham said, his voice shaking at times.
Clemens has the right to appeal Walton's ruling, and defense attorney Rusty Hardin said Clemens' team would make that determination in the coming days. An appeal likely would set the trial date back several months.
The extension of time into 2012 also meant Clemens needed to acknowledge that he would not invoke the Speedy Trial Act, which mandates a defendant must be tried in a reasonable amount of time after being indicted.
"Yes, your honor, I'm willing to waive the speedy trial," Clemens said at the podium in Walton's courtroom, his first comments on the record during these proceedings.
A gag order remained in effect for the participants in the trial, so no comments were available outside the courthouse as the Clemens team and prosecutors left the building.
Clemens, a seven-time Cy Young Award winner who was one of baseball's biggest pitching stars in a 24-year career, was indicted last year on six charges of perjury, giving false statements and obstruction of Congress based on his 2008 testimony before the House Committee on Oversight and Government Reform in which he denied ever using performance-enhancing drugs.
Clemens' trial before Walton began with jury selection July 6 and was supposed to take four to six weeks. But it was stopped in its second day of testimony on July 14 when a video excerpt from Clemens' testimony before Congress was played in the courtroom with a running transcript.
In the video excerpt, Rep. Elijah Cummings (D-Md.) was interviewing Clemens during the 2008 hearing and made mention of an affidavit Laura Pettitte had signed in support of her husband. Andy Pettitte had testified before Congress that his friend Clemens had discussed with him using performance-enhancing drugs, and his wife signed an affidavit that he had told her about Clemens' admission.
Walton, who had ruled before the trial that Laura Pettitte's affidavit could not come in unless defense opened the door to it because it would unfairly bolster Andy Pettitte's credibility, halted the proceedings at that point. He eventually granted a defense motion for a mistrial, setting Friday's hearing date to determine whether another trial would take place.
On behalf of Clemens, Attanasio vigorously argued Friday that the error made by the prosecution was in fact a tactical maneuver to goad the defense into requesting a mistrial and to restart a trial he said was not going favorably for the prosecution.
Attanasio said the government was in a "win-at-all-costs mentality" and that no one should "indulge in the fiction" that it was an inadvertent mistake to show the barred evidence.
"We do not believe that. We won't let that go with a handshake and say it's OK," Attanasio said. "It's too important to our client. ... They walked over him in an effort to start over, and it's not right."
Goodhand, added to the prosecution team in the last week to make Friday's arguments, then took to the podium but didn't say much before Walton, clearly still angered by the events that caused the mistrial two months earlier, interjected.
"I know in fact my rulings were clear. I don't think there was any misunderstanding," Walton told Goodhand.
Walton said he was still troubled with how prosecutors he has known and respected for years would allow a mistake like that to happen inadvertently.
"I want to believe it's a mistake," Walton said. "I've had a tremendous amount of respect for the two prosecutors in this case, and I'd hate to think they'd blatantly disregard one of my rulings. But it's hard for me to reach any other conclusion."
Ultimately, Goodhand concluded that the government agreed with Walton's assertion the day the mistrial was declared that the government should have been more cautious in ensuring any barred evidence was not among the exhibits shown to jurors.
"We agree we should have been more cautious, but it's a long distance of many feet between being more cautious and an attempt to goad a mistrial," Goodhand said.
After a lunch break and a conference on another matter before Walton, the defense was about to begin its rebuttal when Durham was granted the opportunity to address the court. He said he had tried cases before Walton since 1994 and knows the high bar Walton sets for lawyers appearing before him.
"Ultimately, I don't want to put in jeopardy a case that's a strong case, a righteous case," Durham said, mentioning that his father was in the courtroom the day of the mistrial. "I would not dishonor the court in this fashion. I would not dishonor my colleagues. I feel like I've let a lot of people down here."
In his defense rebuttal, Attanasio said he felt Durham "spoke from the heart" but that the contrition was not there in the heat of the moment July 14 as Walton and attorneys for both sides were discussing what to do about the evidence being shown.
"At the time, these were not the answers. These could have been the answers," Attanasio said. "Any one of these answers could have changed this entire episode."
After sitting in quiet contemplation for a few moments, Walton began his comments leading up to his ruling. Walton raised the notion that because the four-plus days of jury selection and two days of testimony were for naught, there should be a remedy for additional legal expenses incurred by Clemens, suggesting perhaps the government should have to reimburse him. But in the end he ruled there was no basis in the record or in case law to grant the defense motions.
"This should not have happened," he said. "We should not be in the posture we are right now."
John Schlegel is a national reporter for MLB.com. This story was not subject to the approval of Major League Baseball or its clubs.Less