Roger Clemens: Transcript Shows Government Intentionally Played Prohibited Clip

Here is the transcript of the final day of the Roger Clemens trial, which ended with a mistrial after the Government played a video and showed a transcript to the jury containing the very statements of Andrew Pettitte's wife Laura that only a week earlier, the Court had ruled inadmissible.

There was no snafu, no playing of the wrong tape, and no forgetting to edit or redact the tape and transcript. The Government acted deliberately. [More...]

From the transcript: The Prosecutor tries to convince the Judge that Congressman Cumming's questions to Clemens that quoted verbatim Laura Pettitte's statements isn't the same thing as Laura Pettitte making the statement. He argues that since the clip they played was of Cummings asking Clemons about (and quoting directly from) Laura Pettitte's affidavit, not of Laura Pettitte herself saying the words, it didn't run afoul of the Court's July 7th order. The prosecutor even tried to tell the judge that this issue hadn't come up before. The judge was not buying it:

THE COURT: 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....I clearly had obviously ruled in reference to Mr. Pettitte's wife. And the fact that information about what Mr. Pettitte said to his wife could not come in unless certain prerequisites were established, which have not at this point been demonstrated.

...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.

And here the prosecutor begins to weave and bobble. First he evades the judge's question. Then he acknowledges there was no intent to make a redacted video clip to comply with the Court's order because he didn't think it was necessary. He again tries to sell the judge on his theory that the clip was not barred because it was of Congressman Cummings quoting from Laura Pettitte's affidavit, not Laura Pettitte in her own words:

THE COURT: Well, how would this come in?

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

THE COURT: It's not their prerogative to say, come back to you after I've made a ruling and say, okay, and based on the Court's ruling, you've got to make these alterations of your exhibits. That's the government's responsibility.

...MR. DURHAM: Your Honor, let me ensure 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] Representative Cummings, which obviously is not evidence at all.

The transcript from the video clip that stayed on the screen in front of the jurors while counsel were having the bench conference was of Congressman Cummings saying to Roger Clemens:

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 --"

The prosecutor played loose and fast with Judge Walton's ruling and got burned. He thought he could get away with the unredacted tape because Laura Pettitte's words were recited by the Congressman in a question to Roger Clemons, rather than by Laura Pettitte herself. And the judge was rightfully furious:

Court: 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. But in the first instance, the obligation of doctoring those exhibits to make sure that my ruling was not, was not violated rests with the government.

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

THE COURT: 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.

THE COURT: That doesn't override my ruling.

MR. DURHAM: I understand.

The prosecutor never said he made new exhibits because he didn't. First he tried to justify his violation of the Court's order by saying the defense had the exhibits for months. But those were the old exhibits, made prior to the court's ruling excluding the Laura Pettitte statements.

It turns out the defense did ask for the new exhibits, and got the runaround. Instead of telling the defense there were no new exhibits, and they intended to use the clip previously provided because in their opinion it didn't violate the court's order (and wasn't evidence at all in their view) they told the defense they were busy and understaffed and would provide them as soon as possible. Clemens' counsel Anastasi gives the court the timeline, which the prosecution doesn't dispute:

Motions in limine hearing, July 5th, the day after the holiday. After that date, several times, including on July 11th, and I invite counsel to disagree with me if he does, but on as recently as July 11th at 3:11 p.m., is when we finally got the government's marked exhibits. It's not that we've had them for weeks and weeks and weeks. 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. And then they moved them in rapidly this morning, and then suddenly we see it on the screen.

So, post Your Honor's rulings, we asked for new exhibits. So, in relation to Your Honor's last comment, we had asked for those repeatedly. And Mr. Durham apologized and cited resource constrictions at the U.S. Attorney's office for why we didn't have them. We understood, under Your Honor's general order, we were to have them three days before the trial. So, we have been pestering, I think that's a fair verb, probably how they would characterize my e-mails, we have been pestering them for marked exhibits in the wake of Your Honor's ruling before and since.(my emphasis)

And here's where the comment about first year law students comes in. It's not about playing the wrong tape. It's about the prosecutor thinking that he could play the unredacted tape because since it was Cumming's words about Laura Pettitte, rather than Laura Pettitte herself, it wasn't prohibited by the Judge's ruling:

COURT: [A]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.

The Judge tells the prosecutor, who had just said the statement of Cummings wasn't evidence, that not only is it evidence, it's substantive evidence. And surely the prosecutor should have known that -- in other words, a first year law student would know it was substantive evidence:

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 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....

...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.(my emphasis)

Just as outlandish is the prosecutor's insistence during this bench conference that the judge was wrong to sustain the defense objection to his opening statements about other players which the judge had previously ruled inadmissible.

What we have here is a prosecutor who, despite rulings from the judge that evidence is inadmissible, intentionally introduces it anyway, and tries to argue that it wasn't covered by the judge's ruling.

There is no inadvertence here. The prosecutor came up with a half-baked scheme, not once, but twice, during the first two days of trial, to get around a court's order and put evidence before a jury that had been ruled inadmissible, without telling either the court or the defense in advance of his intention. If he thought he found a way that either his comments about other players or Congressman Cummings' comments about Laura Pettitte were not covered by the court's ruling, he should have filed a motion to clarify the court's rulings and asked -- before putting the evidence before the jury.

The defense gave its reasons for not objecting immediately. Its reasons were strategic, out of concern for the effect of an objection on the jury, should it object to a portion of a transcript or video that had already been admitted in its entirety without objection. The defense didn't even want a mistrial at first, as opposed to a limiting instruction. It asked for time to consider how to word the limiting instruction.

But then it turned out the prosecution team member in charge of running the tech equipment in the courtroom had failed to turn off the monitor, so that the transcript of Cummings' statements remained on the screen in front of the jury for the three to five minutes counsel had been at the bench. That's an eternity in an effectively silent courtroom with nothing happening because everyone's at the bench having a private consult. So the defense then had no choice but to ask for the mistrial.

What does all this mean for a second trial? I have no idea. Nor do I think that's the big issue. The big issue is the government putting out statements that the playing of the prohibited video was inadvertent, when it was planned and intentional -- and when they misled the defense claiming the new exhibit was in the works but they were understaffed, when they never intended to prepare a new tape, because the prosecutor thought he could get around the court's ruling by playing the old video. And then the Government delivers the final exhibits all together in a bunch the morning of trial (when they were due three days in advance) and never tells the defense there are no new exhibits in the bunch. And then they move on the second day of trial to admit all the exhibits -- including the tapes and transcripts -- never telling the Judge or the defense that these are the same exhibits they delivered months ago. And the defense, based on the prosecutor's replies to their repeated e-mail requests for the new exhibits stating they were swamped and understaffed, assumed the prosecutor in good faith had redacted the tape in question, and didn't object.

So the defense had no clue, when they were asked if they objected to the Government's exhibits as a whole, that the Government hadn't redacted the tape. Only the prosecution knew it pulled a fast one, and it wasn't telling.

The clips of video segments and partial transcripts, as I wrote the other day, were sub-parts of the separately admitted tape and transcript of the entire hearing. The defense didn't object to the admission of the whole tape and transcript, which included the sub-parts, because it trusted the Government to have redacted them in compliance with the court order. The defense concern that the jury would think they were the ones being deceptive if they stood up to object to a sub-part video clip and transcript when just that morning they had not objected to the admission of the whole, is understandable, even if not the best strategy in hindsight two days later. And it certainly doesn't take the blame from where it belongs, squarely on the prosecution.

It also shouldn't be overlooked, as I wrote earlier, that these video clips of hearing testimony were being introduced during the questioning of a Government witness, Phil Barnett, who was the Minority Staff Director and Chief Counsel to the House Committee on Oversight and Government Reform. The Government would play a clip, show him the transcript, and then ask him if truthful answers by Clemens to the question asked in the clip and transcript were "important to the Committee" and "capable of influencing the committee's actions." In other words, these clips and transcripts were offered by the Government to establish an essential element of the charges against Clemens -- Materiality.

Over the next few weeks, DOJ higher-ups will review what happened and make the decision whether to press for a retrial. I won't be surprised if they decide to drop the case entirely rather than press forward, or if they do ask for a retrial, to see a different prosecutor at the helm if their request is granted. In my view, what happened at this trial, in just two days, is a stain on the integrity of the Department of Justice. For what it's worth, I don't think it's systemic, I think it's the sign of a singular rogue prosecution team.

Update: One other possibility. The prosecutor was going for a second bite of the apple. He figured he'd start playing the clip and Rusty Hardin would object, and he'd have a chance to make his specious argument to the Judge that Congressman Cummings's statements about Laura Pettitte's affidavit weren't covered by the court's earlier ruling prohibiting Laura Pettitte's affidavit. If he won, he not only got in Laura Pettitte's affidavit through Cummings, but also Cummings' statements (contained in the same clip) supporting both Andy Pettitte and Laura Pettitte's credibility. If he lost, he'd be in no worse position than having not played the tape. No harm, no foul.

What the prosecutor didn't count on was Hardin not objecting, and the Court stepping in to stop the tape and call him out on it.

The prosecutor had his argument in response to Hardin's anticipated objection all rehearsed. So rehearsed, that when the judge asks him why he didn't redact the exhibit, he responds instead with why the tape was admissible and not covered by the Court's ruling, and that the defense had been provided with the clip months ago. But instead of being able to present his argument as a response to an admissibility objection by opposing counsel, he was forced to present it as justification to the Judge for his violating the exclusion Order, and the tactic didn't just backfire, it blew up in his face.

Did Rusty Hardin anticipate this? Maybe he did, after his associate told him the Government was giving them the runaround on providing the redacted tape. If the Government hadn't provided a redacted tape, it must mean they were going to play the old one. Since it was on the new exhibit list, they obviously hadn't decided to forego playing some version of it.

Or maybe Hardin figured out what the prosecutor was up to in those first few seconds or minute that the tape played in court, and anticipating the Judge would intervene, he decided to sit back and let the prosecutor hoist himself on his own petard. I wouldn't count either scenario out.

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  • Display: Sort:
    Dumb like a fox (5.00 / 1) (#6)
    by Peter G on Sat Jul 16, 2011 at 11:53:32 AM EST
    Great, careful reading and analysis of the transcript, TL!  So the prosecutor deliberately decided he could get away with evading the judge's ruling by offering the prohibited double hearsay in the form of triple hearsay!  Very clever (not).  But even so, what does a devious prosecutor have to lose by such tactics? Once caught (and after the damage is done in front of the jury), either the judge slaps the prosecutor on the wrist - maybe chews him/her out in front of the jury, gives a strong admonition, etc. - but lets the trial go on, or the judge asks the defense lawyer whether s/he wants a mistrial. If the defense lawyer says no, s/he is basically admitting what the prosecutor did wasn't so bad and the trial can still go on and yet be fair.  Thus, if a conviction ensues, the defense lawyer's position is used against the defendant on appeal.  If the defense lawyer says yes to a mistrial, s/he waives the double jeopardy bar against a second trial - unless the judge will find that the prosecutor pulled this stunt with the intent of provoking a mistrial.  But that's not what the prosecutor intended; what the prosecutor intended was to evade the judge's ruling and secure a conviction, however unfairly, at this trial.  That's the effect and upshot of the Supreme Court's terrible 1982 opinion in Oregon v. Kennedy, by Rehnquist (5-4 decision), which basically invited unscrupulous prosecutors to play this game.

    excellent analysis (none / 0) (#7)
    by Jeralyn on Sat Jul 16, 2011 at 02:35:24 PM EST
    Thanks, Peter.

    Analysis I heard is that if the prosecution GOADS (none / 0) (#9)
    by jawbone on Sat Jul 16, 2011 at 03:06:29 PM EST
    the defense into calling for a mistrial, then there is no possibility of a second trial.

    This looks like "goading" to me, but it's not easy to prove the prosecution's motives.

    But I surely may have misunderstood or misheard as I am not a lawyer nor do I play on blogs.


    Either you heard wrong, or the comment (none / 0) (#10)
    by Peter G on Sat Jul 16, 2011 at 03:54:03 PM EST
    you heard was inaccurate.  The test as expressed by the Supreme Court focuses on the prosecutor's intent, not the effect of the prosecutor's misconduct on the defense. Here's what the Supreme Court majority held in the controlling 1982 case:  "Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. ... Only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."  As you can see, it's not whether the prosecutor goaded the defense into making the mistrial motion, it's whether the prosecutor intended to goad the defense. And it's not whether the prosecutor intended to deny the defendant a fair trial, but whether s/he intended to subvert the Double Jeopardy Clause.  Big difference, in terms of getting judicial enforcement.

    If intent to deny a fair trial is shown, (none / 0) (#12)
    by magster on Sun Jul 17, 2011 at 03:29:39 PM EST
    doesn't the due process clause kick in at that point, even if the double jeopardy test from Kennedy is not met.  Something akin to an egregious discovery violation that results in dismissal.  I can't see a blatant disregard of a discovery order to provide exculpatory evidence any worse in its effect on an accused's rights than a blatant disregard of an order excluding prejudicial evidence.

    On what authority do you say (none / 0) (#13)
    by Peter G on Sun Jul 17, 2011 at 05:12:32 PM EST
    that an "egregious discovery violation" would likely result in a dismissal rather than a continuance (if revealed during trial) or a new trial (if revealed afterwards)?  In other words, I think your premise is incorrect, as well as your conclusion.  Except in the most extreme cases of unrecoverable prejudice, a due process violation ordinarily results in an order for a new trial, at best, not a dismissal. In fact, if you really want to know, "ordinarily" an egregious due process violation by the prosecution results in an affirmance on the basis of "harmless error."

    Peter, your double jeopardy comments (none / 0) (#14)
    by Jeralyn on Sun Jul 17, 2011 at 05:53:44 PM EST
    are spot on. Last night I re-read Oregon v. Kennedy and "shepardized" it. The law is pretty clear that even when the prosecution goads the defense into asking for a mistrial, unless that was their intent, it won't bar a new trial. Egregious conduct (such as putting in clearly inadmissible evidence) if caused by an intent to have a better chance of winning the trial (as opposed to an intent to cause the defense to ask for a mistrial because they think they're losing and want to start over with a new jury) won't do it.

    Thanks to you all for explicatng and explaining (none / 0) (#15)
    by jawbone on Sun Jul 24, 2011 at 04:36:02 PM EST
    this.  Really appreciated expert input.

    Blatant disregard of the (none / 0) (#2)
    by oculus on Sat Jul 16, 2011 at 07:42:53 AM EST
    Court's order. If prosecutor in good faith believed Cummings' question did not violate the in limine, he should have run that by defense counsel and if the latter disagreed, asked the Court for a ruling.

    Maybe if the government wasn't so (none / 0) (#3)
    by Anne on Sat Jul 16, 2011 at 08:42:55 AM EST
    hell-bent on pursuing these kinds of prosecutions, there wouldn't be so much pressure on prosecutors, these in particular whom I understand have a generally excellent reputation within the legal community, to make gold out of sraw.

    It's just really too bad that the pursuit amd prosecution of a baseball player whose alleged lies to Congress have hurt exactly no one is deemed more worthy than, say, those told with straight faces by the rogue's gallery of witnesses from banking and Wall Street whose actions hurt millions - and for which we are still paying while they reap, once again, record profits.

    I guess it's worse to be just a liar than to be a liar AND a thief, huh?

    Anne, something this blatant, this overt, might (none / 0) (#8)
    by jawbone on Sat Jul 16, 2011 at 03:02:19 PM EST
    someone on the prosecution thought this witch hunt was not worth the time and effort and effect on how people view the legal system.

    Is this a career ender for...whom?


    I would go for systemic (none / 0) (#4)
    by KeysDan on Sat Jul 16, 2011 at 10:25:21 AM EST
    over rogue.  A US Assistant Attorney General put in an unflattering comparison to a first-year law student by the presiding judge speaks, by my lights, to something other than a singular case of incompetence or dishonesty.  This is a high profile case that surely was not entirely delegated in strategy and tactics to a prosector who suddenly morphs into a rogue.

    This is all part and parcel (none / 0) (#5)
    by NMvoiceofreason on Sat Jul 16, 2011 at 11:50:35 AM EST
    of the legal tradition of immunity for prosecutors. Brady violations? Repeated? Can't sue. http://www.supremecourt.gov/opinions/10pdf/09-571.pdf

    When you don't lose you license, or even pay a fine for behavior you know is beyond the pale... then you do it again. See William Welch.

    When they do it, disbar them with prejudice. After a few colleagues go that route, the behavior will stop.

    Either that, or hang them (Shakepeare's method). But perhaps we could take a page from the great trial lawyer Abraham Lincoln's book: Perhaps we don't need to hang them at all. Perhaps it is enough to let them know they would be eligible for the honor.

    Reno was a transitional figure in the DOJ (none / 0) (#11)
    by Rojas on Sun Jul 17, 2011 at 10:30:03 AM EST
    but not in a good way. Holder was her second in command and she endorsed him for the position he holds now. Her background in Dade County, Fl. with her repressed memory prosecutions provide a view of her "leadership" style. It was under her leadership the DOJ became the Win at All Costs monstrosity as documented in the Post-Gazette series by the same name.

    As to Holder, he is meeting the expectations that most objective observers assigned to him when he was appointed to the position.

    And "as someone who prides himself on his knowledge of the mechanisms that propel government operations" could you elaborate on this "Deputy U.S. Attorney" position you refer to? Are you under the impression that Steven Durham is Deputy AG?

    Quite frankly, if you think the DOJ is an agency lacking direction, you really have not been paying attention the last twenty-odd years. This is not the civil rights DOJ nor is it the anti-trust DOJ, hell it ain't even the S&L scandal DOJ. This is the don't make waves until I, or my boss, can sell services to those we're supposed to be regulating DOJ.

    Clemens is just the latest in a long line of human cannon fodder to serve as a placebo in our treatment of justice in a dysfunctional system.