WASHINGTON – The Justice Department, embarrassed by blundering into a mistrial of Roger Clemens last year, has added more prosecutors as it tries again to convict the famed pitcher of lying to Congress when he said he never used performance-enhancing drugs.
Jury selection in the new trial begins Monday.
The legendary former pitcher, who famously reveled in staring down hitters, will face a prosecution lineup of five lawyers -- more than double the two from the first trial.
Last July, U.S. District Judge Reggie Walton declared a mistrial 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 is expected to last four weeks to six weeks.
The Clemens team won't be outgunned. It 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.
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."
Prosecutors know that some potential jurors might object to spending too much money on the case because Walton advised them last year that some of the original jurors thought it was would be a waste of money to retry Clemens.
McCann 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.
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.
Under U.S. sentencing guidelines, Clemens probably would face up to 15 months to 21 months in prison.