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Column: The Clemens Case — Beware of the Hunt for Big Game

Allan Lengel

By Allan Lengel
ticklethewire.com

When you go hunting for big game — particularly dangerous targets — you better be prepared. You also better be a good aim.

Screw up and it can cost you — particularly if it’s a lion or a tiger or some other creature that can devour you.

The U.S. Attorney’s Office in D.C. went hunting for big game the other day by prosecuting major league baseball legend Roger Clemens, who was accused of lying to Congress about using performance enhancing drugs. The hunter in this case got devoured — not so much by the major game it was hunting — but by itself.

On Thursday, on the second day of testimony, it screwed up big time by mistakenly presenting congressional testimony that referenced the wife of former pitcher Andy Pettitte, a friend and former teammate of Clemens’s. Pettitte had told his wife that Clemens had taken the performance enhancing drugs. Clemens claimed he was mistaken.

U.S. District Judge Reggie Walton had ruled earlier that the prosecution could not reference the wife. Walton said the wife repeating the hearsay would be unfair to Clemens at trial.

So a highly annoyed Walton declared a mistrial. A Sept. 2 hearing is set to determine whether the government will get a second shot.

Either way, it’s a major major embarrassment for  the U.S. Attorney’s Office and Justice Department.  The two prosecutors on the case — Steven Durham and Daniel Butler — are both very able, seasoned and well respected attorneys. The U.S. Attorney’s Office did not screw up by assigning them to the case.  Nonetheless, the prosecutors screwed up.

The pain for them is unimaginable — almost  like dropping the ball with two outs in the bottom of the ninth inning  during the seventh game of the world series, with bases loaded — and you’re up by 1 run. Painful. You want to hide in your room. You want to knock back a few shots of single malt Scotch or tequila. And that’s just for breakfast.

There’s nothing  to do now but try and salvage the case and figure out why the lapse in judgment. There’s no excuses here.

Alan M. Gershel, a professor at Thomas M. Cooley Law School in Michigan and former chief of the criminal division for the U.S. Attorney’s Office in Detroit for 20 years, said the misstep “to say the least is certainly an embarrassment.”

Gerhsel said the judge could rule against a new trial. That being said, Gershel said it may help the prosecution, when seeking a new trial, that the misstep appeared to be inadvertent.

So we’ll see what the judge decides in the case that some critics, frankly, thought should never had gone to trial anyways.

On the upside, it wasn’t nearly as bad as the Ted Stevens case when prosecutors from the Justice Department won the case, but had the conviction thrown out because they withheld key evidence from the defense.  That case was a plain old mess and the prosecutors needed to pay for that.

Whatever, this is just another one of those embarrassments the Justice Department could do without.

P.S. Beware of the hunt for the big game.


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