WASHINGTON — In baseball terms, the first Roger Clemens trial was a rainout in the top of the first inning.
Not because it actually rained, but because one of the teams turned on the sprinkler and left it running.
Only two witnesses had been called last July when U.S. Judge Reggie Walton declared a mistrial, famously declaring that prosecutors had made a gaffe that even a “first-year law student” wouldn’t make.
It was a courtroom humiliation even a baseball fan would understand.
It’s been a nine-month wait for the makeup date.
The case of United States vs. William R. Clemens was set to return to court Monday with the start of jury selection in the second attempt by the government to prove that the seven-time Cy Young Award winning pitcher lied when he denied, in an appearance before Congress in 2008, using steroids and human growth hormone.
To help make sure there’s not another misstep, the Justice Department now has five lawyers on the prosecution team, up from two at the first trial.
“They bulked up their team,” said Washington lawyer Stan Brand, who represented Major League Baseball in connection with a 2005 congressional investigation into the sport’s steroids policies. “They’re going belt-to-suspenders so they don’t make any mistakes.”
The trial is expected to last four weeks to six weeks, and the basics remain the same.
The government’s key witness is Clemens’ former strength trainer, Brian McNamee, who says he injected the pitcher with performance-enhancing substances and held on some used needles that will be entered as scientific evidence. Clemens will be doing what he can to clear his name from allegations that the backside of his remarkable 24-year, 354-win career was the product of something more than an intense fitness regimen.
The wait for the retrial has renewed debate over whether it should be taking place at all.
Any verdict would be irrelevant for those who say Clemens has already been convicted in the court of public opinion, and even Clemens himself told Congress at the 2008 hearing that “no matter what we discuss here today, I’m never going to have my named restored.”
Clemens’ statistics normally would be more than enough to put him in the Hall of Fame on the first ballot, but he’ll be far from a shoo-in when he becomes eligible next year.
The prosecution has to be wary of the perception that the government has more important things to do than pursue than a costly case centered on a baseball player’s truthfulness. Some of the jurors in the first trial felt that trying the case a second time would be “a waste of taxpayers’ money at a time when we have significant fiscal problems in our country,” Walton told both sides last September, according to a newly discovered transcript.
With the trial is starting anew, the stakes are still high for both sides. Clemens’ reputation aside, he faces the very real possibility of time behind bars if he is convicted. U.S. sentencing guidelines suggest he would receive up to 15 months to 21 months in prison if found guilty on all six counts. The maximum sentence is 30 years and a $1.5 million fine.
“Because if this man got convicted, from my perspective, knowing how I sentence, he goes to jail,” Walton said last year when explaining why he was calling a mistrial.
The government needs a victory after expensive, high-profile setbacks involving other major sports figures dogged by doping allegations. A seven-year pursuit against home run king Barry Bonds yielded a guilty verdict on just one count — obstruction of justice — and a sentence of 30 days confinement at his Beverly Hills estate. Bonds has appealed his conviction.
Also, the Justice Department recently closed, without bringing any charges, a two-year investigation of possible drug use by seven-time Tour de France winner Lance Armstrong.
“For the government to lose this case after obtaining a very mild victory against Bonds,” said Michael McCann, law professor and director of the sports law institute at Vermont Law School, “would invite a lot of questions about the appropriateness of these prosecutions.”
Associated Press Writer Frederic J. Frommer contributed to this report.