By FREDERIC J. FROMMER, Associated Press
WASHINGTON (AP) — On a baseball field, players back up teammates to limit the damage from errors. The Justice Department, embarrassed by an error that caused a mistrial of Roger Clemens last year, has added more prosecutors in hopes of containing any missteps as it seeks to convict the famed pitcher of lying to Congress when he said he never used performance-enhancing drugs.
The prosecution team has more than doubled from two lawyers to five, enough manpower for an infield and pitcher. U.S. District Judge Reggie Walton declared a mistrial last July on only the second day of testimony, after prosecutors showed jurors evidence that had been ruled inadmissible. Walton also will preside over the new trial, which begins selecting a jury on Monday and is expected to last four weeks to six weeks.
"It's no secret that the first ride was a bumpy one for the government trial team," said Ty Cobb, a former federal prosecutor now in private practice, where he specializes in white-collar criminal defense and congressional investigations. "Adding talented lawyers is probably a wise move."
Cobb said he would be surprised if more than two or three prosecutors would be active in the courtroom. He said the government needs to be careful not to devote enormous resources to the case.
Prosecutors know that some potential jurors might object to spending too much money on the case because Walton advised then last year that some of the original jurors thought it was would be a waste of money to retry Clemens.
But Stan Brand, a Washington lawyer who represented Major League Baseball in connection with the 2005 congressional investigation into the sport's steroid policies, said he didn't think that the number of prosecutors would matter to a jury.
"It's not like Clemens will have one lawyer with a yellow pad," he quipped. "This is a big deal. Both sides will bring all the guns they can."
Indeed, the Clemens team has six lawyers working on the case, led by Houston lawyer Rusty Hardin, whose Rusty Hardin & Associates has represented sports stars such as quarterback Warren Moon, baseball star Wade Boggs and NBA great Scottie Pippen, each a Hall of Famer.
Brand predicted that both sides will be gun-shy about stepping over the line, given last year's mistrial.
The Justice Department wants to be extra careful not only because of the first trial, he said, but also the botched prosecution of the late Sen. Ted Stevens, R-Alaska, which infuriated trial judge Emmet G. Sullivan. The department withheld evidence from Stevens' attorneys so often that Attorney General Eric Holder, in his first months on the job, asked that Steven' conviction be overturned; Sullivan agreed. A 525-page report by a special prosecutor presented an unflattering glimpse behind the scenes of Stevens' 2008 prosecution.
"They bulked up their team," Brand said. "They're going belt-to-suspenders so they don't make any mistakes."
Both Hardin and the U.S. attorney's office for the District of Columbia, which is prosecuting the case, declined to comment for this story, citing Walton's gag order.
Michael McCann, a law professor and director of the sports law institute at Vermont Law School, said it was unusual to have so many prosecutors "for a perjury case that isn't terribly complicated."
He said the department has extra motivation to convict Clemens, given the amount of money spent on the case and the underwhelming outcome of its more-than-seven-year investigation of Barry Bonds over steroids.
Bonds, baseball's career home run leader, was found guilty last year on just one count, obstruction of justice, for giving an evasive answer to a grand jury when asked about drug use. He received a sentence of 30 days confinement at his estate in Beverly Hills. Prosecutors dropped three other counts charging Bonds with making false statements after the jury deadlocked on those charges. Bonds has appealed his conviction.
"For the government to lose this case after obtaining a very mild victory against Bonds," McCann said, "would invite a lot of questions about the appropriateness of these prosecutions."
In addition, the Justice Department recently closed, without bringing any charges, an expensive two-year, multi-continent investigation of possible drug use by Lance Armstrong, the cyclist who beat cancer and won the Tour de France seven straight times.