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Clemens trial transcripts

Published Jul. 14, 2011 1:00 a.m. ET

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The government showed Exhibit 3-B2, a video of Roger Clemens’ hearing in front of a congressional subcommittee in 2008. During the video, Rep. Elijah Cummings (D-Md.) praised Andy Pettitte and Pettitte’s wife, Laura. Such evidence was previously ruled as inadmissible — referenced here as “the motion in limine" — and eventually led a mistrial to be declared in Clemens' perjury and obstruction trial on Thursday.

Here are details of how it transpired, according to court transcripts obtained by FOXSports.com.

JUDGE WALTON: I hate to raise with experience, counsel, testimony that's coming in without objection, but we have talked about this and there's some issues.

CLEMENS’ LEAD ATTORNEY, RUSTY HARDIN: No, here's my problem, Judge: I've got a visual to the jury of a document that we did not object to being in evidence, which was the hearing. I don't know quite what to do in front of the jury.”

ASSISTANT U.S. ATTORNEY STEVEN DURHAM: Well, but these exhibits, these admissions have been turned, this video clip and this transcript was turned over in early May.

JUDGE WALTON: I understand. But what is being played now is in total contradiction to what I had ruled in the motion in limine.

MR. HARDIN: Exactly.

JUDGE WALTON: So, you know, this should not have been played, unless counsel believes that for some reason the landscape had changed and therefore there was a reason for me to reach a different decision.

MR. HARDIN: The landscape has not changed.

MR. DURHAM: This is part of the Congressman's question to Mr. Clemens. If this has been raised before. . .

JUDGE WALTON: It had been raised, maybe not specifically in reference to this clip, but it had been raised as to whether or not this information coming from the wife, Mr. Pettitte's wife, could come in. And I had said no. Obviously, something could have occurred that could open the door to make it come in, but at this point I haven't seen that door opened.

CLEMENS’ ATTORNEY MICHAEL ATTANASIO: May I just say for the record that when Judge Walton makes a ruling on a motion in limine, it's incumbent on the prosecutor to then redact or alter his exhibits, not hand them to counsel and tell us, I'm admitting 3-A through 3-H and expect counsel for the defense to read them in 30 seconds and then move them in. They should have been changed.

[Jury exits courtroom]

JUDGE WALTON: Well, government counsel, I am troubled by, I mean, now this actual substance hasn't come out, although the clear implication from what has come out is that something was said by Mr. Pettitte to his wife, consistent with what is already before the jury. And I had made a ruling that statements that Mr. Pettitte allegedly made to his wife could not come in unless certain prerequisites were established. And I'm perplexed, having made that ruling, as to why these exhibits were not altered to ensure that there was not a violation of my order. I don't particularly like making rulings and lawyers not abiding by those rulings.

MR. DURHAM: There was no intention to run afoul of any Court ruling, Your Honor.

JUDGE WALTON: Well, how would this come in?

MR. DURHAM: Well, these items were delivered to the defense two months ago, these clips. This is part—

JUDGE WALTON: It's not their prerogative to say “Come back” to you after I've made a ruling and say, “OK, and based on Judge Walton's ruling, you've got to make these alterations of your exhibits.” That's the government's responsibility.

MR. HARDIN: And if I may add, Your Honor, the problem with that is, is that this exhibit now, I'm sure we're going to find has not been redacted to take out references to Mr. (Chuck) Knoblauch and to others. And that, and additionally, I'm going to guess, they have not redacted to comply with Judge Walton's order in that regard either. I suspect, maybe they have. I assumed they had when I didn't object to the introduction, but now I think we're on notice that there may not have been redactions there either. Perhaps there have been.

JUDGE WALTON: Well, how do we proceed? I mean, I think this clearly runs afoul of my pretrial rulings.

MR. DURHAM: Your Honor, let me assure that there are no other references to Mrs. Pettitte or any other players. This was within the context of a question that was being posed by Rep. Cummings, which obviously is not evidence at all.

MR. HARDIN: Well, let me mention, the problem we have is, is this is the second, so there must be a total misunderstanding on the government's part as to their obligations, because this happened during opening statement, too. I had to object during opening statement to a mentioning of other players. Judge Walton ruled and reminded them that that was a violation of the motion in limine. Now we're here this second time.

MR. DURHAM: Your Honor, I don't want to revisit last week's, the discussion. But I can produce a transcript. When I asked Judge Walton, I don't want to run afoul of Judge Walton's ruling, can the government mention other players with respect to and in connection with why they used the drug as opposed to whom they got it from. There is no bad faith on the part of the government here in trying to prove this case.

JUDGE WALTON: Well, you know, as I said, maybe there was some misunderstanding of what my ruling was. But I thought I had made it clear that what these other players did as it related to their involvement with Mr. (Brian) McNamee and their knowledge that they were getting steroids and HGH from Mr. McNamee, would have no bearing whatsoever on what Mr. Clemens' knowledge as to what he was getting from Mr. McNamee. . . . Now, obviously in reference to Mr. Pettitte, in light of the fact that he says that Mr. Clemens told him that he used these substances, I think it's probably inevitable that his use as it related to Mr. McNamee is going to be something that's going to come before this jury. . . . I think clearly this information about Pettitte's wife runs totally afoul of what I said could come in in reference to her. And now we've got this before the jury. The clear implication is that Andy Pettitte said to this wife something consistent with what he says Mr. Clemens told him. So now we've got a prior inconsistent statement that otherwise doesn't qualify for admissibility, at least on the current record, before this jury.”

[Short recess]

MR. HARDIN: Your Honor, first, depending on the Court's ruling, we'll have a notice objection. But I think reluctantly, we're going to have to move for a mistrial because of the prejudicial nature of what's happened in front of the jury. For the record, I'll point out what was relayed to me while we were up at the stand. During the bench colloquy that, quote, stayed up there frozen by the government's people on the TV. And I'm not alleging bad faith with her; she doesn't know what we were talking about up there. But the entire time we were before the bench on it, Congressman Cummings' statements about Laura Pettitte were on the screen for the jury to be looking at.

JUDGE WALTON: Did it specifically say on the screen what Andy Pettitte said to his wife?

MR. HARDIN: I'd have to check and see because we were standing up — it was that last portion.

MR. BUTLER: Yes, it did, Your Honor.

JUDGE WALTON: I'd have to see it again.

[Brief pause]

JUDGE WALTON: It's on the screen. You can just read into the record what is on the screen now.

MR. HARDIN: (Reading screen) Let me read to you what his wife said in her affidavit: "I, Laura Pettitte, do depose and state in 1999 or 2000 Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones. Mr. Clemens, once again, I remind you, you are under oath. You have said your conversation with Mr. Pettitte never happened. If that was true, why would Laura Pettitte remember Andy telling her about the—"

JUDGE WALTON: Any response from the government to the motion for a mistrial?

MR. DURHAM: We object, Your Honor. This exhibit, these exhibits were admitted into trial without objection. They had been previously—

JUDGE WALTON: But, counsel, it overlooks (a previous ruling). And what should have happened is that once I made my ruling, government counsel should have redacted the documents to reflect those documents in light of my ruling. There should have been a request by the defense for copies of these new exhibits which counsel, as I understand, had at least the prior documents, prior to my observation in limine ruling. Once I made those rulings, I agree, counsel should have made a request for that information to make sure that whatever the government was going to use was in compliance with my ruling.

MR. DURHAM: We're not evading any responsibility, Your Honor.

JUDGE WALTON: Why wasn't this altered in order to ensure that this information that I had ruled could not come in would not be played to this jury and shown to them?

MR. DURHAM: This exhibit is in the context of a question that is asked to Mr. Clemens specifically.

JUDGE WALTON: That doesn't override my ruling.

MR. DURHAM: I understand.

MR. ATTANASIO: May I be heard on the issue of marked exhibits, Your Honor?

JUDGE WALTON: Yes.

MR. ATTANASIO: Time line: Motions in limine hearing, July 5, the day after the holiday. . . . We never got them despite repeated requests, “please give us your marked exhibits,” and I don't think government counsel will disagree, until the 11th hour.

JUDGE WALTON: The other thing that bothers me is that there was no objection; there should have been an objection. Now, again, whether the defense had the opportunity to review this in light of the hour in which it was produced and review the transcript is another issue. But, again, government counsel doesn't do just what government counsel can get away with doing. And I think a first-year law student would know that you can't bolster the credibility of one witness or a witness with clearly inadmissible statements. And this evidence is coming in, the statements that Mr. Clemens made at this hearing, are coming in as substantive evidence; i.e. the alleged false testimony that the government is saying he gave. At this hearing Congressman Cummings is opining on his perspective regarding the credibility of Mr. Pettitte. So, now we have before the jury, not only do we have Mr. Pettitte's wife saying that Mr. Pettitte told her something consistent with what she says Mr. Clemens said, but we also have Congressman Cummings opining on his credibility that he places on Andy Pettitte. So, now we've got two things before the jury that are bolstering Andy Pettitte's credibility. And in my view he is a critical witness because obviously there's going to be serious challenge to the credibility of Mr. McNamee. That may not undermine his credibility, but I think it's a lot harder task to undermine the credibility of Andy Pettitte. And I think that task only becomes more difficult when now we have before this jury two items that inappropriately bolster his credibility. And we'll never know what impact that has on how this jury ultimately decides this case when we've got a man's liberty at interest. I'm very troubled by this. I mean, we have expended a lot of government money to reach this point. Government counsel should have been more cautious in what was presented to this jury to ensure that we were not in this situation. I don't see how I un-ring the bell.

MR. DURHAM: I think it can be done through an appropriate instruction to the jury.

JUDGE WALTON: I don't think so. As much as I would hate to have to go back through all four or five days again of jury selection with the limited time, the resources that this Court has and the other things I have on my calendar, I don't see how I un-ring the bell. Because in my view, based upon what I know about the case, I think Mr. Pettitte's testimony is going to be critical as to whether this man goes to prison. And I can't in good faith leave this case in a situation where a man's liberty is at risk when the government should have taken steps to ensure that we were not in this situation.

[Recess]

JUDGE WALTON: I've talked to several of my colleagues. I've pondered what occurred, and at bottom, Mr. Clemens has to get a fair trial. And he has a right to have his guilt or innocence decided based upon evidence that is legally admissible. And obviously in assessing what I do in the face of the request, it's been made for a mistrial, is to try and make a determination as to the significance of Mr. Pettitte's testimony, and try and make my best estimate as to, with what has occurred, whether Mr. Clemens can get a fair trial. And I view Mr. Pettitte's testimony as critical to the government's case. While obviously it could be suggested that he misunderstood what Mr. Clemens was saying, I think there are … I think it's going to be very difficult to undermine his credibility. And when you add his testimony with all of the other evidence, I think it becomes very difficult for Mr. Clemens.

And it only becomes more difficult for Mr. Clemens when the testimony of Andy Pettitte has been inappropriately bolstered through evidence that was presented by the government: One, in reference to the comments made by Congressman Cummings, which not only got Mr. Clemens to indicate that Andy Pettitte is an honest person, but the congressman himself to have opined, which should not have not been before the jury, his impressions of the credibility of Mr. Clemens. But we also have, which was a direct violation of the pretrial ruling I made in response to a motion in limine that had been filed by counsel for Mr. Clemens, and that was to keep out the testimony of Mr. Pettitte's wife in light of the fact that you'd have a prior consistent statement before the jury indicating from the wife that shortly after Mr. Clemens is supposed to have admitted his use of HGH, that Mr. Pettitte came home and told his wife that Mr. Clemens had, in fact, made that admission. It was because of in my view that would be extremely prejudicial and would unfairly bolster Mr. Pettitte's credibility absent, as I ruled, something occurring during the course of the trial that would open the door and therefore result in that evidence coming in to possibly rehabilitate Mr. Pettitte based upon what may take place or would take place during the course of cross-examination. But my assessment that experienced counsel, as defense counsel is, that they would have stayed away from asking questions that would bring out this information because of the obvious impact it would have.

And sadly, I have reached a conclusion that to permit this case to go forward with the government having done what it did … Because it was the government's obligation, once I made my ruling, to go back, look at its evidence and make sure that the information that it would be presenting to this jury did not — did not — violate a clear ruling that this Court had made. And the government not having done that, and in my view having put this case in a posture where Mr. Clemens cannot now get a fair trial before this jury, I will declare a mistrial. I think what we have to do at this point is assess whether the government, having precipitated this mistrial, whether the government can now retry this case or whether re-prosecution is barred by double jeopardy.

MR. DURHAM: Your Honor, may we have an opportunity to brief Judge Walton's … may we now have an opportunity to brief Judge Walton's ruling on the mistrial?

JUDGE WALTON: You're not going to be able to convince me. 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. So, I will not give time for this matter to be briefed on that issue. I assume now we have to address the issue as to whether this case can be re-prosecuted. And I'll set a schedule for motions on whether double jeopardy bars re-prosecution at this time.

Mr. Hardin, how much time will you need to file your motion?

MR. HARDIN: Ten days.

JUDGE WALTON: Ten days?

MR. HARDIN: Whatever Judge Walton prefers.

JUDGE WALTON: It's your prerogative.

MR. HARDIN: I think we can live with 10 days, Your Honor.

JUDGE WALTON: Very well. I'll just make it 29th of July, which is a little more than 10 days. I'll give the government until the 19th of August to file an opposition, and the 26th of August for the government to file a reply. Set the 2nd of September for a hearing on the motion. Let's bring the jury in.

MR. HARDIN: Your Honor, we're going to assume on this side of the table the gag order is still in effect?

JUDGE WALTON: Yes, because I don't know if the case has to be retried. If it does, I don't want a potential jury pool to be in some way tainted.

MR. HARDIN: Yes, sir.

[Jury enters courtroom]

JUDGE WALTON: You may be seated. Ladies and gentlemen, we have taken about a week out of your life. We've expended a lot of your taxpayer's money to reach this point in this case. Unfortunately, there are rules that we play by, and those rules are designed to ensure that both parties receive a fair trial. . . . . I, therefore, have decided very reluctantly because we've spent a lot of time and effort impaneling this jury, that because of what I just indicated, that I have to declare a mistrial and terminate these proceedings. I apologize to you for what has transpired.

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