THE BLOG
07/20/2011 01:29 pm ET Updated Sep 19, 2011

Roger Clemens' Prosecutors: The "Oops, I Did It Again" Gang

"Didn't you notice a powerful and obnoxious odor of mendacity in this room?... There ain't nothin' more powerful than the odor of mendacity...", so says Big Daddy played by Burl Ives in the Tennessee Williams' classic, Cat on a Hot Tin Roof, starring Paul Newman and Elizabeth Taylor. I couldn't help but think of that line from Mr. Clark's 11th grade English class when word came that a federal judge had stopped the trial of Roger Clemens because of prosecutorial misconduct.

Isn't it ironic that the very thing Clemens is on trial for and could go to prison for, lying to Congress, is kinda what the prosecution did with the judge? First promising not to do the HGH guilt by association thing in their opening statement but then naming former Yankee teammates Chuck Knoblauch, Mike Stanton, and Andy Pettitte anyway. Then, "oops... I did it again" (with apologies to artist Britney Spears), promising they would not try to pass off wife Laura Pettitte's inadmissible hearsay as competent evidence to the jury, then going ahead and doing it.

Judge Reggie Walton told the prosecution they weren't allowed to introduce comments Laura Pettitte had made about what her husband, Andy, a Yankee pitching teammate of Clemens', had told her about what Roger had supposedly told Andy. If this sentence was difficult for you to follow that's why the judge ruled that Laura Pettitte's comments are inadmissible hearsay. Some might call it double hearsay.

The prosecution promised to follow the judge's order. Then turned around and presented Laura Pettitte's inadmissible hearsay to the jury anyway. It's not like they forgot what the judge had ruled just a few days earlier. And, hey, it's their job to keep track of the judge's rulings. Did the prosecution think they could sneak it in? Maybe the judge wouldn't notice. Maybe Clemens' defense team wouldn't notice either. His defense lawyer didn't object at first. Would the media pick up on it? Worth a shot, right?

Can't un-ring a bell, the judge pointed out in declaring a mistrial. Was that what the prosecution was counting on? That you can't un-ring a bell with the jury. That the jury would be influenced by the information they were not supposed to see or hear? What the prosecution wasn't counting on was that the judge would do the right thing and declare a mistrial.This was the second time in a two-day trial that the prosecution had ignored Judge Walton's rulings.

Don't forget in their opening statement, the prosecution happened to mention that some of Clemens' Yankee teammates had admitted to using Human Growth Hormone. This isn't even relevant evidence since it's not clear that Major League Baseball had said players couldn't use HGH at the time certain players may have used it.

If ever double jeopardy were to attach in a case, this is the case. It's hard to believe that what these experienced prosecutors did was an innocent mistake. In admonishing them, Judge Walton pointed out even a first year law student knows what happened is bush league.

How can there be another trial of Clemens? How can the court trust these prosecutors to follow the judge's rulings in a second trial? What's that old saying? Fool me once shame on you; fool me twice, shame on me. The prosecutors already have two strikes against them.This is a courtroom not a baseball diamond. They don't get three strikes. Judge Walton should call them out. They don't get a do-over.

This isn't the only high-profile federal case of late where there has been serious prosecutorial misconduct. Alaska Senator Ted Stevens' case fell apart when the prosecution was found not giving up evidence that might clear him. They are required by law to turn that over to Stevens' defense team. Like Clemens, Stevens was on trial for lying. But what about his "oops... I did it again" prosecutors?

Is the thinking to become a star prosecutor, you have to take down a star? Stevens was the longest-serving Republican in the U.S. Senate. Clemens with seven Cy Young Awards, more than any other pitcher in the history of the game, two Yankee World Series rings, and being one of only four pitchers ever to have achieved 4,000 strikeouts (all his kids' names begin with a "K"), is arguably the biggest pitching star of all.

The job of a prosecutor is to see that justice is done, not to win any which way you can. We, the taxpayers, pay these federal prosecutors' salaries, and they receive nice salaries with benefits that many working stiffs in the private sector no longer receive. They have great job security. We pay them to do the right thing, not the wrong thing. What penalties do prosecuting attorneys suffer when they pull stunts like this? None. That's why they keep doing it.

The prosecution team's audacity and some might say mendacity together with their utter contempt of this court and the judicial process, puts the whole criminal justice system in jeopardy and in disrepute in the eyes of the public. Holding these prosecutors in contempt of court is not enough.

This has become a show trial, and this is one show that should not go on. Let the curtain ring down. If the trial judge doesn't police the prosecutors, who will? On September 2, the next court date, Judge Walton has the power and the right to end this ball game. To rule that to re-try Clemens would constitute double jeopardy. Otherwise, it will be the same old prosecutorial excuses throughout a second trial -- "Oops... I did it again!"