By FREDERIC J. FROMMER, Associated Press
WASHINGTON (AP) — Lawyers for Roger Clemens are objecting to prosecutors' bid to ban some of the arguments the former pitcher used at last year's perjury trial, which ended in a mistrial.
In a pretrial motion filed with the court Wednesday, Clemens' lawyers noted that prosecutors didn't object when those arguments were made during an opening statement last year. Clemens' team says the move to ban the arguments represented an attempt "to improperly capitalize on the do-over."
Last year's case ended in a mistrial after prosecutors showed jurors inadmissible evidence. Clemens, one of the most successful pitchers in baseball history, is accused of lying under oath when he testified before Congress in February 2008 that he never used performance-enhancing drugs in his career. Prosecutors will try to prove he used steroids and human growth hormone. Clemens says the evidence was manufactured by his former trainer.
Clemens' motion was in response to one filed by prosecutors last month urging U.S. District Judge Reggie Walton to ban several lines of argument in the new trial — such as maintaining the prosecution was a waste of money, referring to the punishment Clemens might receive, and asking jurors to put themselves in the former pitcher's shoes.
In their motion Wednesday, Clemens' lawyers said the government's motion was not persuasive, but even if it was, it should still be rejected on principle.
"The government should not be afforded this second bite of the apple to parse Mr. Clemens's opening statement from the safe refuge of their offices after they caused a mistrial," they wrote. "The motion itself demonstrates that the government has used the mistrial as an opportunity to run roughshod over Mr. Clemens's constitutional protections."
Clemens' team says the government's attempt to limit what the defense can say is "both too late and too early" — too late because prosecutors didn't object the first time, and too early to object to what the defense will say in its opening statement.
"Defense counsel does not use a script, and, even if he did, the statements made on Mr. Clemens's behalf during the first trial would differ from those yet to come in the second trial," they lawyers wrote.
In its motion, the government cited a statement from last year's trial in which Clemens' lawyer said, "I ask you to look at this evidence that you're going to hear with an eye toward, if you spent a 24-year career thinking you did it the right way, when the whole world condemns you and assumes, as soon as something comes out, that it's true without ever really being willing to listen to you, what would you do?"
Clemens' lawyers argued Wednesday that was not an attempt to put jurors in Clemens' shoes, as the government maintained.
"A reasonable juror would have understood that defense counsel was referring to Mr. Clemens himself," they said.
They also said a "passing reference" in last year's opening argument to the fact that government wants to convict and send Clemens to prison is "very different than requests by counsel for the jury to consider appropriate punishments, which is the sole province of the Court."
And Clemens' lawyers said that when they called the investigation "the classic example of chasing a flea on an elephant" in last year's trial, "a reasonable juror could have just as easily, and properly, heard that the House committee's pursuit of Mr. Clemens from 2008 to the present lacks a legitimate legislative purpose as he or she could have heard the insinuation of which the government now complains" — that the defense was trying to argue the government was wasting money on the investigation.
In their motion last month, government lawyers said they wanted to bar Clemens' lawyers from arguments they say will encourage jurors to nullify the law and acquit regardless of the evidence.
In another motion Wednesday, Clemens' lawyers said they didn't object to prosecutors plans' to have pitcher and former Clemens teammate Andy Pettitte testify about his own use of HGH. But they did say they objected to any expected testimony about assistance Pettitte received using HGH from Clemens' former personal trainer Brian McNamee, arguing that would constitute "guilt by association."