Feds 0-for-1 against Clemens, but stepping back into the box

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Courtroom observers will have a second opportunity to witness the Rocket's dread glare in coming weeks. (MANNIE GARCIA / BLOOMBERG NEWS ARCHIVES)

WASHINGTON -- 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 defence 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 said. "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.

Brand predicted that both sides will be gun-shy about stepping over the line, given last year's mistrial.

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. 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."

-- The Associated Press

Republished from the Winnipeg Free Press print edition April 15, 2012 B7