Clemens says prosecutors provoked mistrial

The attorney for Roger Clemens asked a federal judge on Friday to dismiss the charges against the former Yankees pitcher because "the prosecutor's misconduct was intended to provoke a mistrial."

Rusty Hardin, Clemens' attorney, alleged in a 34-page filing that it "was no accident" that prosecutors showed the jury a video containing references to Laura Pettitte's banned testimony on July 14, the second -- and last -- day of the trial. Hardin also argued that a new trial would violate Clemens' constitutional right against the double jeopardy of facing the same charge twice.

Hardin accused prosecutors of "intending to goad" them into asking for a mistrial because, he said, a mistrial would then give the government enough time to "reshape its case" in the wake of the judge banning testimony considered critical to the government's strategy.

A representative for the U.S. attorney's office said, "Because the judge's [gag] order remains in effect, the U.S. attorney's office has no comment on the defense filing."

Prosecutors have until Aug. 19 to respond to Hardin's filing.

U.S. District Judge Reggie Walton is expected to rule on whether to go forward with a new trial in a hearing in federal court Sept. 2.

Days before the trial began earlier this month, the judge said Laura Pettitte could not testify about what Andy Pettitte told her about a conversation he had with Roger Clemens about performance-enhancing drugs. The judge also banned former Yankees Pettitte, Chuck Knoblauch and Mike Stanton from testifying about their own drug use.

But prosecutors mentioned the players' drug use during their opening statement, to which Hardin objected.

Then, on the second day, prosecutors showed videotape of a congressional hearing in which Rep. Elijah Cummings (D-Md.) questioned Clemens about statements made by Laura Pettitte about her conversation with her husband.

"The government had its day in court and squandered it with misconduct that irretrievably wasted time, money and the opportunity for a one-time, fair resolution of these charges for all involved," Hardin wrote. " . . . Having provoked a mistrial by willfully ignoring this court's in limine [pre-trial] rulings, the government should not be afforded this second bite of the apple."

Clemens is charged with perjury, making false statements and obstruction of Congress related to his denials of using performance-enhancing drugs under oath at a 2008 congressional hearing. If he is retried, he'll face 15 to 21 months in jail if convicted of all charges.

When Walton declared a mistrial, the judge openly questioned whether the case would be allowed to go forward because of double-jeopardy constitutional rights because the government's actions "precipitated this mistrial."