Roger Clemens Mistrial: Are You Smarter Than a 1L?

Looks like Roger Clemens is off the hook, at least for the time being. After the U.S. Attorney prosecuting his perjury case made a bone-headed blunder, the judge declared a mistrial. Everyone will get back together in September to decide if they’ll try to do the whole thing over again.

Basically, Steven Durham, the Assistant U.S. Attorney trying the case, was busted by U.S. District Court Judge Reggie Walton for playing a video from the 2008 Congressional hearings on performance enhancing drugs in baseball that contained inadmissible evidence. In the video, a congressman quotes the wife of Andy Pettite, one of the prosecution’s star witnesses, saying that her husband told her about Clemens’ steroid use. The idea was to make Pettite seem more credible because of his wife’s backing. But Walton had ruled that evidence out of bounds, citing it as hearsay, since Pettite’s wife was just relaying what Andy had already told her. The Judge was so incensed that Durham disobeyed his instructions that he scrapped the whole trial.

“I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,” Walton said.

That’s been the money quote from yesterday’s proceedings, which got me thinking, should a first-year law student know all that? I emailed a buddy who just finished his second year at Cornell Law School for the verdict. “In short,” he said, “no.”

The first issue is that first-year law students don’t take the evidence course, so it’s unlikely they’d be sure about this, even if they’re aware of the general hearsay rule. Also, the rules concerning hearsay are sometimes fairly complicated, even if the hearsay rule itself seems fairly straightforward. In other words, while I would know without having to think about it that you can’t introduce that tape for the purpose of proving that Clemens actually did take steroids, I’d definitely have to pause and think about it if someone asked, “Well, what if they’re not offering it for its truth, but rather, to ‘bolster the credibility’ of a witness?”

My friend added, though, that this is definitely something a second-year law school student should know. That’s when students usually take the relevant coursework. “You’re not even allowed to bolster a witness’s credibility unless it’s been attacked to begin with, anyway, so the fact that it also had hearsay issues makes it even worse,” he said. “Add to that the fact that it was a US Attorney making the mistake, and not some hack, and, yeah, it becomes fairly shocking.”

So there you go: U.S. Attorney Steven Durham: not as dumb as a 1L but dumber than a 2L. Generally speaking, shockingly dumb.


Jason Schwartz
Jason Schwartz Jason Schwartz, Senior Editor at Boston Magazine jschwartz@bostonmagazine.com


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