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Clemens judge declares mistrial

Roger Clemens leaves federal court in Washington after

Roger Clemens leaves federal court in Washington after the judge declared a mistrial in his perjury trial. (July 14, 2011) Credit: AP

WASHINGTON -- Federal prosecutors fouled out Thursday in the Roger Clemens perjury trial when a judge declared a mistrial after the government introduced evidence that had been barred.

U.S. District Judge Reggie Walton made the ruling on the second day of testimony, scolding Assistant U.S. Attorney Steve Durham for introducing crucial evidence that had been specifically barred in a pretrial judicial order.

Walton said he'll hold a hearing Sept. 2 on whether to restart the trial with a new jury or to simply toss it out because it would represent double jeopardy for Clemens, the former Yankees pitcher accused of lying to Congress. Double jeopardy means a person is put on trial twice on the same charge.

"Mr. Clemens [cannot] get a fair trial before this jury, so I will declare a mistrial," Walton told the attorneys, and then dismissed the jurors, who appeared disappointed.

With that, the biggest and possibly last major criminal trial to emerge from Major League Baseball's steroids era, which was expected to include testimony from well-known former Yankees, came to a halt.

Clemens, standing by the defense table in a dark suit with an orange tie, didn't react or even smile at the sudden and stunning turn of events.

It also at least postpones defense attorney Rusty Hardin's promised attack on Brian McNamee, Clemens' former trainer and chief accuser.

"Roger's not going to have anything to say," Hardin said in the sun outside the courthouse. "But it's a beautiful day."

Hardin and prosecutors also declined to comment because of Walton's gag order, which prevents talking about the case.

Now up to Walton is the fate of the government's charges that Clemens lied at a Feb. 13, 2008, congressional hearing when he denied using steroids and human growth hormone.

If the judge decides the prosecution's barred evidence was simply a mistake, he could proceed with a new jury, lawyers say. But if he decides it was prosecutorial misconduct, he could throw the case out.

Walton stopped the trial in the middle of a video clip that Durham was showing to establish the validity of the House hearing that led to the charges.

The clip showed Rep. Elijah Cummings (D-Md.) questioning Clemens about friend Andy Pettitte's statement that Clemens a decade ago admitted he used HGH, and how Pettitte had told his wife about it.

Walton objected that he had ruled in a pretrial hearing that Laura Pettitte could not testify and she should be excluded from the evidence presented.

Walton also complained the clip showed Cummings bolstering Pettitte's credibility. "In my view, based upon what I know about the case, I think Mr. Pettitte's testimony is going to be critical," the judge said.

Hardin had not objected to the clip, but he quickly said, "I think, reluctantly, we're going to have to move for a mistrial."

Durham pleaded with the judge, arguing he submitted the video clip as evidence and no one had objected to it. Walton said Durham should have modified it after his ruling.

The judge said he was reluctant to go forward with a trial in which "a man's liberty is at risk." Clemens faced 15 to 21 months in prison if convicted.

Later, when Clemens left the courthouse amid a scrum of cameras and reporters, he looked exhausted but relieved.

He stopped and signed autographs as he made his way down the street.

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