The defense team filed a motion this week asking the court to bar any move of the government to revive the steroid perjury case of Roger Clemens. Clemens’ lawyers claim that a re-trial would violate the constitutional rights of their client. If Clemens will be charged with the same offense it would fall under double jeopardy. They also argued that a second trial would put their client to even more expense, embarrassment and anxiety. Thus, it would be unfair to proceed with a second trial.

Legal experts already expected that the defense will invoke the double jeopardy rule. If this is upheld by the judge, Roger Clemens will finally get away with the charges. The defense also asked the court to dismiss the steroid perjury charges against Clemens.

The trial was cut abruptly on the second day for procedural error committed by the prosecution. Clemens is being tried for allegedly lying about his steroid use and obstructed a congressional investigation. Even before the jury heard testimonies from key witnesses, Judge Reggie Walton already declared a mistrial.

Prosecution Provoked a Mistrial

Rusty Hardin, Clemens lead counsel, said in the filing that the prosecution deliberately committed the error to result in a mistrial. “By the time the government provoked the mistrial, its highly experienced counsel had suffered a series of setbacks that cast doubt on the case against Mr. Clemens,” said in the motion as quoted by the AP.

The failure of the government caused the case to be unresolved. “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,” they said.

The presentation of evidence that was already barred by the judge was not an accident. Actually it was the second offense of the prosecutors. The first was telling the jury that Clemens’ former team mates admitted to the use of anabolic steroids. The second, which angered Judge Walton, was the presentation of a video showing the deposition of Laura Pettitte.

Judge Walton already told the prosecution during the pre-trial hearing to remove any testimony of Laura Pettitte. Laura alleged that her husband Andy told her that the pitcher injected himself with human growth hormone. However, the judged ruled that it was hearsay and inadmissible as evidence.

Reasons Why the Prosecution Wanted a Mistrial

According to Clemens’ lawyers, the government wanted a mistrial because they need more time in reorganizing their strategies. The defense cited the judge’s decision to limit the evidences of the prosecution particularly from Clemens’ former teammates. The government was also caught unguarded when the defense raised the credibility issue against the key witness, Brian McNamee. The former trainer allegedly lied to police investigators during a sexual assault incident involving an MLB player.

The defense has been telling the court that McNamee is not a credible witness. They claim the trainer gave conflicting testimonies during the Congressional inquiry. Another reason why the government needs more time is on how they could defend the obstruction act in the indictment. Judge Walton has questions about the way Roger Clemens was charged with obstruction of justice.

Prosecutors Silent

The judge gave the prosecution until August 19 to respond to the motion by the defense. The prosecution declined to comment when asked by the media. “We’re limited in what we can say beyond what is formally submitted or stated to the court,” Bill Miller, a spokesman for the U.S. Attorney’s Office in Washington, told Bloomberg. “Our response will come on or before August 19,” he added.

A September 2 hearing is set to discuss if a retrial is needed.

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