WASHINGTON – On a baseball field, players back up teammates to limit the damage from errors. The Justice Department, embarrassed by an error that caused a mistrial of Roger Clemens last year, has added more prosecutors in hopes of containing any missteps as it seeks to convict the famed pitcher of lying to Congress when he said he never used performance-enhancing drugs.
The prosecution team has more than doubled from two lawyers to five, enough manpower for an infield and pitcher. U.S. District Judge Reggie Walton declared a mistrial last July on only the second day of testimony, after prosecutors showed jurors evidence that had been ruled inadmissible. Walton also will preside over the new trial, which begins selecting a jury on Monday and is expected to last four weeks to six weeks.
"It's no secret that the first ride was a bumpy one for the government trial team," said Ty Cobb, a former federal prosecutor now in private practice, where he specializes in white-collar criminal defense and congressional investigations. "Adding talented lawyers is probably a wise move."
Cobb said he would be surprised if more than two or three prosecutors would be active in the courtroom. He said the government needs to be careful not to devote enormous resources to the case.
Prosecutors know that some potential jurors might object to spending too much money on the case because Walton advised then last year that some of the original jurors thought it was would be a waste of money to retry Clemens.
But Stan Brand, a Washington lawyer who represented Major League Baseball in connection with the 2005 congressional investigation into the sport's steroid policies, said he didn't think that the number of prosecutors would matter to a jury.
"It's not like Clemens will have one lawyer with a yellow pad," he quipped. "This is a big deal. Both sides will bring all the guns they can."
Indeed, the Clemens team has six lawyers working on the case, led by Houston lawyer Rusty Hardin, whose Rusty Hardin & Associates has represented sports stars such as quarterback Warren Moon, baseball star Wade Boggs and NBA great Scottie Pippen, each a Hall of Famer.
Brand predicted that both sides will be gun-shy about stepping over the line, given last year's mistrial.
The Justice Department wants to be extra careful not only because of the first trial, he said, but also the botched prosecution of the late Sen. Ted Stevens, R-Alaska, which infuriated trial judge Emmet G. Sullivan. The department withheld evidence from Stevens' attorneys so often that Attorney General Eric Holder, in his first months on the job, asked that Steven' conviction be overturned; Sullivan agreed. A 525-page report by a special prosecutor presented an unflattering glimpse behind the scenes of Stevens' 2008 prosecution.
"They bulked up their team," Brand said. "They're going belt-to-suspenders so they don't make any mistakes."
Both Hardin and the U.S. attorney's office for the District of Columbia, which is prosecuting the case, declined to comment for this story, citing Walton's gag order.
Michael McCann, a law professor and director of the sports law institute at Vermont Law School, said it was unusual to have so many prosecutors "for a perjury case that isn't terribly complicated."
He said the department has extra motivation to convict Clemens, given the amount of money spent on the case and the underwhelming outcome of its more-than-seven-year investigation of Barry Bonds over steroids.
Bonds, baseball's career home run leader, was found guilty last year on just one count, obstruction of justice, for giving an evasive answer to a grand jury when asked about drug use. He received a sentence of 30 days confinement at his estate in Beverly Hills. Prosecutors dropped three other counts charging Bonds with making false statements after the jury deadlocked on those charges. Bonds has appealed his conviction.
"For the government to lose this case after obtaining a very mild victory against Bonds," McCann said, "would invite a lot of questions about the appropriateness of these prosecutions."
In addition, the Justice Department recently closed, without bringing any charges, an expensive two-year, multi-continent investigation of possible drug use by Lance Armstrong, the cyclist who beat cancer and won the Tour de France seven straight times.
The essence of the Clemens case remains the same: The seven-time Cy Young Award winner is charged with perjury, false statements and obstruction of Congress for telling a House committee under oath, in both a public hearing and in a deposition with committee staff, that he hadn't used steroids or human growth hormone during his 24-season career.
Defense lawyers indicated at last year's brief trial they would question if it was proper for lawmakers to investigate whether Clemens used performance-enhancing drugs, but that argument didn't draw much sympathy from Walton.
The key witness for the government will be Clemens' former strength trainer, Brian McNamee, who says he injected Clemens with steroids and human growth hormone, and even kept the used needles that will be entered as scientific evidence at trial.
Clemens' lawyers will seek to discredit McNamee, who provided drugs to several professional baseball players and has acknowledged he hasn't always told the truth about Clemens' drug use and other matters. McNamee initially denied giving Clemens drugs, before admitting to federal agents he injected the pitcher. The defense team has said that the trainer fabricated the evidence.
Harder to discredit will be another prosecution witness, Andy Pettitte, a former Clemens teammate who recently came out of retirement to mount a comeback attempt with the New York Yankees. Pettitte says that Clemens, in a private conversation in 1999 or 2000, acknowledged using HGH. Clemens has said Pettitte "misremembers" their conversation.
If convicted on all six charges, Clemens faces a maximum sentence of up to 30 years in prison and a $1.5 million fine. Maximum penalties are unlikely because Clemens doesn't have a criminal record, but Walton made plain at the first trial that Clemens was at risk of going to jail.
Explaining why he was calling a mistrial, the judge said, "Because if this man got convicted, from my perspective, knowing how I sentence, he goes to jail. And I'm not going to, under the circumstances, when this has happened, put this man's liberty in jeopardy. He's entitled to a fair trial; in my view, he can't get it now. And that was caused by the government."
Under U.S. sentencing guidelines, Clemens probably would face up to 15 months to 21 months in prison.
The prosecutors from last year's trial, Steven Durham and Daniel Butler, are returning for the retrial.
Durham, chief of the public corruption unit at the U.S. attorney's office, also prosecuted baseball player Miguel Tejada. In that case, Tejada pleaded guilty to a misdemeanor of misleading congressional investigators who questioned him about steroids. Butler, who also works in the public corruption unit, successfully prosecuted the case of "D.C. madam" Deborah Jeane Palfrey, who ran an escort service that catered to high-profile clients, including Sen. David Vitter, R-La.
Last August, several weeks after the mistrial was declared, the government added a third assistant U.S. attorney, David B. Goodhand, who works in the U.S. attorney's office appellate division. Then in February, the Justice Department added two more assistant U.S. attorneys from the office: Gilberto Guerrero, Jr., who works on violent crime and narcotics trafficking, and Courtney G. Saleski, who works on fraud and public corruption.
"The government is doubling down on the trial, trying to get every advantage they can," said George Washington University law professor Jonathan Turley.
Paul Cassell, a former federal judge and associate deputy attorney general, said he didn't expect much to change from the first case.
"The facts are the facts, and both sides will lay those out," said Cassell, who now teaches criminal law at the University of Utah College of Law. But he said the government might have an advantage in the mistrial, having already seen the defense's opening argument.
"Typically defendants don't have to put any cards on the table leading up to a trial," Cassell said. "Prosecutors are often shooting in the dark. Now they now can use the defense opening statement as a roadmap."
Harry Sandick, a former federal prosecutor who now defends white-collar cases, agreed.
"The defense took their best shot, the prosecution saw the opening, that's an advantage to the government," he said. Even though the defense also saw the government's opening statement, that's less of advantage to Clemens because prosecutors tend to open with a more standard argument, Sandick said.
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