Prosecutorial Misconduct or Mistake? Roger Clemmons’ Mistrial.

“A first year law student would know you can’t bolster the credibility of one witness with clearly inadmissible evidence.” US District Judge Reggie B. Walton. Ouch! Having a federal judge tell you that a first year law student is smarter than you is a real slap in the face for any criminal lawyer. He must have been really, really angry. And while the press will discuss this case in terms of larger meanings, that is rarely the real story. Here is what I think was really going on. 

Roger Clemmons is one of baseball’s biggest celebrities. In 2008, he told Congress he did not use human growth hormone. Other witnesses said he was lying, and the Feds decided to charge him with the crime of lying to Congress. Yesterday, on the very first day of trial, Roger Clemmons won his criminal case on a mistrial by the prosecution. In short, the Judge had ruled a particular piece of evidence inadmissible in Clemmons criminal trial. 

The evidence had to do with Andy Pettitte who said Clemmons told him he took human growth hormone. Pettitte told his wife about it, and his wife signed an affidavit confirming only that Pettitte told her about the conversation. So she only heard this third hand, and the Judge said that was not admissible. Then the prosecution showed a video which included that affidavit, along with a Congressman quoting from the affidavit. Do did they goof up? If so, that is a rather large mistake for a seasoned criminal prosecutor. How did they not know this inadmissible evidence was clearly discussed in one of their first videos? If this was a simple mistake, it is unlikely the Judge would have thrown the whole criminal case out. 

Mistakes happen and lawyers are human too. Judges do not usually call a mistrial just for a simple mistake, unless it is truly and completely prejudicial. I am not so sure this slip up met that burden. The jury was going to see tons of evidence from 45 government witnesses who would testify that Clemmons was lying about taking human grown hormone. If he was lying, he is guilty the crime he was charged with. Was this one extra piece of evidence really enough to make such a big difference? Maybe it was, since Andy Pettitte was one of the star witnesses. But I think the Judge suspected something else was going on here, and that is what made him so angry at the prosecutors. 

Say you have a really good piece of evidence in your criminal case, but it is inadmissible. The temptation is great to get it in somehow. And if you try, we lawyers call that “getting it in through the backdoor.” Sometimes it can work, but you have to be creative. In this case, it looks like the prosecution was trying to get in evidence through the back door, and they did it in a most uncreative manner. The Judge probably saw this as a deliberate attempt to get around his rulings. If this is what the prosecution was doing, it borders on prosecutorial misconduct. What most news outlets are not reporting is that the prosecution had already done this once when they mentioned inadmissible evidence during opening statements.

So this was their second attempt to back door inadmissible evidence during their criminal prosecution. And it was only day 2 of the trial! Once is a mistake. Twice is a pattern. And the Judge probably thought mistrial was a fitting punishment for the pattern he saw developing. Mistrials are very rare. In essence, three years of government investigation is thrown out in one fell swoop. For the Judge to declare this mistrial, he must have thought this was more than a simple mistake, and he must have thought it was being done deliberately as part of a pattern.

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