A recent BLT Blog post, “Prosecutors: Clemens’ Defense Team Not Entitled to Legal Fees” reports that the prosecutors in the Roger Clemens perjury case said today the former baseball pitcher’s defense team is not entitled to attorney fees from the government as a sanction for the botched prosecution.  Clemens’ lawyers, including Houston’s Russell Hardin Jr., want Judge Reggie Walton of Washington federal district court to order the government to pay thousands of dollars in legal fees following the mistrial in July.

Walton terminated the trial after prosecutors presented evidence to jurors that the judge had previously restricted.  Assistant U.S. Attorney Steven Durham said, “The government regrets this.  This mistake does not entitle defendant to attorney fees and costs.”  The prosecutors went on to say that “no trial is perfect” and that allowing the imposition of fees for errors “would mire the federal courts in collateral litigation about the ‘costs’ of mistakes.”

The prosecutors said Clemens’ legal team cannot invoke the Hyde Amendment, which provides some recourse for defendants in criminal cases, to recoup fees.  Durham said Clemens was not the prevailing party and be cannot show the prosecution was “vexatious, frivolous, or bad faith government misconduct.”

Walton said in court he did not know whether he has the authority to order the government to pay Clemens’ defense team.  “I think fundamental fairness obviously would require that he be reimbursed for those expenses, but sometimes fundamental fairness doesn’t bear out when it comes to legal issues that a court has to resolve,” Walton said.