What's next for Roger Clemens?

WASHINGTON

Roger Clemens was already judged by many as guilty before his first trip to the nation’s capital more than three years ago to defend himself.

Clemens’ testimony in front of Congress did little to sway public opinion that the seven-time Cy Young Award winner was, at least for part of his career, a drug cheat. That’s probably as close as the government will ever get to a conviction in the wake of the mistrial declared in Clemens’ perjury and obstruction case Thursday.

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And maybe this case should have always remained in the court of public opinion.

“I don’t see any reason why this didn’t stay in this arena,” said Rep. Bobby Rush, D-Ill., who called separate hearings into steroids while the head of the subcommittee on Commerce, Trade and Consumer Protection. “That’s not the arena that should deal with this. It needs to be dealt with on the legislative side and in full view of the public, not in the criminal justice arena.”

The prosecutors — whose inexcusable gaffe in court led to the proceedings to be halted — will likely be able to try Clemens again. But should they even go through the trouble?

“Nobody likes to gear up for a second time,” said Marc Mukasey, a former assistant US attorney. “They say it’s like putting on a wet bathing suit. The government, however, seems to be pretty dedicated to this case.”

There’s no question the feds’ devotion to the steroids issue, which began in earnest with raids on the Bay Area Lab Co-Operative (BALCO) in 2003. Several hearings have been called by Congress, former President George W. Bush mentioned the ills of steroids use in the State of the Union and millions have been spent to prosecute some of the biggest names in sports, which likely makes Thursday’s error by Assistant US Attorney Steven Durham all the more frustrating.

Durham allowed part of a transcript of Clemens’ hearing in front of the House Committee on Oversight and Government Reform where Rep. Elijah Cummings, D-Md., extolled the credibility of former Clemens teammate Andy Pettitte and Pettitte’s wife. Pettitte was set to be a key witness for the prosecutors, slated to tell the jury about two conversations where he discussed performance-enhancing drugs with Clemens.

“I don’t see how I un-ring the bell,” US District Court Judge Reggie Walton said before he declared the mistrial.

Even in a case where jury selection lasted more than twice as long as the trial, it was likely an easy call for Walton since the trial depended almost entirely on the credibility of witnesses, Mukasey said. Prosecutors were previously warned about bolstering credibility of upcoming witnesses, and Cummings’ comments were supposed to be redacted.

“I think this measure was justified because it’s not something that can be cured with an instruction to the jury,” said Mukasey, a partner with Bracewell & Giuliani. “In certain cases, a judge would just instruct the jury to disregard the inadmissible testimony. In this situation you have a United States congressman vouching for the credibility of two witnesses. Once the jury hears that, it’s likely to be unfairly prejudicial to Clemens, so I think Walton did the right thing.”

Walton called a Sept. 2 hearing to discuss the possibility of a second trial and mentioned there could be double-jeopardy concerns that preclude a retrial. Mukasey said since it was Clemens’ lead attorney, Rusty Hardin, who asked for the mistrial and no judgment was issued, prosecutors should be able to re-present the case.

A gag order remains in place, so we can’t gauge the government’s interest in a retrial. From all outward appearances, however, prosecutors will likely attempt to push forward.

“I think everybody understands who did what by now,” said Victor Conte, BALCO’s co-founder. “They have their opinions about Barry Bonds and Roger Clemens. My opinion: There is better use of federal taxpayer dollars. I hope this case doesn’t continue.”

Cummings, interviewed by FOXSports.com in the halls of a House office building, declined to talk specifically about Thursday’s mistrial, but he did say it’s been time and money well spent — at least on the legislative side of things.

“The original aim was to help prevent young people from trying to emulate professional sports stars who were using steroids and other banned substances,” said Cummings, who refused to comment specifically about the Clemens case. “I think we had some impact on that. In the process of doing that we also helped push major league baseball, football, basketball and other pro sports in the right direction. It’s worked.”

The hearings have certainly had a bigger impact than the two marquee criminal cases this year. Bonds, baseball’s all-time home run champ, was convicted of only one of four charges — obstruction — and even with a deeper well of evidence, a conviction in the Clemens’ case was hardly a sure thing.

“These are very tough cases to make,” Mukasey said. “There are some evidence problems, and this case deals a lot in hearsay. When you need a comment (like Cummings’) to vouch for the credibility of another witness, I think that highlights the delicate and fragile nature of the government’s case.”