Feds bulk up for retrial of Roger Clemens over steroids
The Justice Department, embarrassed by an error that caused a mistrial of Roger Clemens last year, has added more prosecutors as it seeks to convict the famed pitcher of lying to Congress when he said he never used performance-enhancing drugs.
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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.Skip to next paragraph
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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.
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.