Judge sets new trial in Clemens perjury case

By Jeremy Pelofsky

WASHINGTON (Reuters) - A U.S. judge on Friday ordered a new trial for baseball star Roger Clemens, refusing to throw out charges that he lied about steroids use despite a mistrial after prosecutors used evidence that had been barred.

Judge Reggie Walton agreed to start a second trial on April 17, 2012, over whether the former pitcher lied when he told Congress and investigators in 2008 that he had never taken steroids and human growth hormones.

After a lengthy and costly investigation, Clemens was indicted for perjury, making false statements and obstruction. His attorneys sought to have the case dismissed over the misconduct while prosecutors insisted it was an accident.

Walton declared a mistrial in the opening days of the case in July because prosecutors showed jurors a video clip that included references to the wife of Clemens' teammate Andy Pettitte, who claimed the pitching ace admitted taking drugs and told her.

The problem was that the judge had barred references to the wife because she was repeating what her husband had said, and told the prosecutors he would allow such evidence only if Clemens' lawyers somehow mentioned her during their defense.

The allegations that Clemens -- at one-time considered a shoe-in for the Baseball Hall of Fame -- used performance-enhancing drugs has tarnished his record, which included 24 years playing for four teams and winning the Cy Young Award for best pitcher seven times. He has denied ever using the drugs or lying about it.

As Walton weighed whether to allow another trial, he pointed out that the prosecutors were highly experienced and should have gone back through the evidence they planned to use to scrub it for any references to Pettitte's wife.

Walton said he "hated to believe" that the incident was intentional, but "it's hard for me to reach any other conclusion."

"It does seem clear to me, for whatever reason, there was a disregard of the rulings that I made," Walton said angrily. He later backed off those assertions after an impassioned plea by the lead prosecutor Steven Durham.

He rejected a request by Clemens' lawyers to bar prosecutors from getting a second chance because it would violate their client's constitutional rights against being tried twice on the same charges, known as double jeopardy.

"The current state of the law will not justify me concluding" that the double jeopardy clause would bar reprosecution, Walton said.


The Clemens legal team could appeal his ruling, a move that could delay the new trial.

Walton's ruling came after an emotional plea by the prosecutor who made the error, Steven Durham. He insisted it was an unintentional mistake that was not meant to provoke a mistrial and that he took full responsibility for it.

"My reputation, my commitment to the honor to the job we do is far too important for me to engage in some tactic. Far too important," a chastened Durham said. "We made a mistake, I made the mistake. It's on me."

Clemens' attorneys had urged Walton to reject the request for a second trial, arguing that the prosecutors may have felt the case was not going well and wanted a mistrial declared so they could try again. They also argued that the prosecutors did not like the jury.

"There is no doubt, no doubt that this was a calculated effort to make an end-run around this court's ruling," said Clemens' lawyer Michael Attanasio. "This case should end, enough money has been wasted, the government doesn't deserve a second bite at the apple."

In the end, Walton rejected those arguments.

(Editing by Xavier Briand and Mohammad Zargham)