I had actually dreaded the Roger Clemens trial – not because of how it would reflect on baseball, I think baseball and many of its fans accept that the “Steroid Era” existed but are ready to move past it. No, I dreaded it because it would draw attention away from the game I love, as the media would breathe new life into this “scandalous” period of MLB history. Of course, in the end my inner law nerd won out and I found myself earnestly following the live-tweets from Newsday columnist Jim Baumbach, who did a fantastic job of covering the trial from start to finish.
When the trial ended, I came to a surprising personal realization – I am actually quite a bit less sure that Clemens juiced than I was prior to the trial. First, I am very much against players taking PEDs, though I am willing to forgive and move on when a player owns up to what he did and moves on with his career. That’s not to say I think every person who denies taking PEDs is guilty either – just don’t give me some idiotic excuse for taking a female fertility drug. Others may be quick to judge, but I guess despite being a lawyer I still like to believe people will try to do the right thing more often than not. Of course, my legal training has led me to look for the real evidence in these cases – and that evidence was wholly lacking in the government’s prosecution of Clemens. So let’s take a look at some of the biggest holes in the case against Clemens.
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Guilty by association?:
I will not rehash the whole Andy Pettitte saga, which was well covered by some (and atrociously covered by much of the media), but this was one of the government’s first big mistakes. They are now claiming that Pettitte, who claimed he was “50/50” on perhaps mishearing what Roger Clemens told him in regards to Clemens’ use of HGH, has flip-flopped. Once again, Pettitte’s testimony was consistent with the testimony he gave before Congress in 2008. Obviously, the government wanted to put a confessed user of HGH who was a very good friend of Clemens in front of the jury, hoping to get a conviction from association. Pettitte is a likable guy who comes across as sincere, but the substance of his testimony was inconclusive at best.
There were many arguments about what players’ names were allowed to be used in testimony and in what ways, but none more than Pettitte. Working along the same strategy, there was a lot of testimony and evidence regarding the infamous Jose Canseco pool party, though Canseco did not testify. It was an interesting tactic, as Canseco, who has been quick to implicate many players and admit his own use, has always stated he never saw Clemens juice. Judge Reggie Walton had his hands full in trying to limit evidence that was more prejudicial than probative in this case, often to the detriment of the prosecution. Both sides’ lawyers found themselves at odds with the judge at various times throughout the trial, but I will not bore you all with some of the evidentiary arguments that occurred. Let’s just say it was a good case to follow while studying the rules of evidence in a criminal trial.
Brian McNamee – world’s worst “key” witness:
Brian McNamee, the former trainer who allegedly supplied Roger Clemens with PEDs, was the person the government built its case around. He supplied the physical evidence (more on that later) along with testimony about injections he gave Clemens. McNamee was on the stand for about a week and I could probably spend just about that much time going over all the reasons he may be one of the worst “key” witnesses to base a case around in quite a while. He did his part to try to help out the prosecutions case, however, by repeatedly “accidentally” saying Pettitte’s name on the stand when he had been warned numerous times against it.
Roger Clemens’ defense team did a fantastic job taking apart McNamee’s credibility – not that it was that hard given the wealth of material to choose from. McNamee has lied about so many things and at so many different times it is not hard to believe that if his lips are moving, he is lying. His ex-wife even refuted his reason for holding onto the supposed physical evidence proving Clemens had cheated. McNamee stated he did it to get her off his back about his providing Clemens with PEDs, which she denied. She may be as believable as he is, quite frankly, but regardless it does give one reasonable doubt, does it not?
The FedEx box of syringes:
Chain of custody is an important aspect of dealing with physical evidence. Larry gave us a great post about chain of custody and drug testing after Ryan Braun won his arbitration case. In that case, a urine sample spent a couple extra days in the collector’s basement, which was enough to nullify the result. In this situation, however, we have a box of random syringes and cotton balls that has sat in a box in McNamee’s house for years.
You would think a guy with some police experience would know a thing or two about preserving evidence if that was truly what McNamee wanted to do. Instead, he put random items in a crushed beer can and stored it away for safe keeping. Even better, it turns out that the medical waste in the box included those of other players. So you have a bunch of needles, cotton balls, etc from multiple people all mixed together in a box and beer can – yeah, that’s trustworthy.
I am still a bit shocked that it only took the jury about ten hours to deliberate after two long months of testimony, some of it quite technical. It was hardly surprising that multiple jurors were dismissed for sleeping through portions of the trial. Still, they came to the right decision because the standard of reasonable doubt in a criminal trial is the highest standard there is and the government came no where close to reaching it. A wholly unbelievable key witness who had a plethora of reasons to lie (financial and otherwise) and physical evidence that is perhaps even less reliable are not going to reach that burden. Clemens did not get off because he is a famous pitcher and he did not get off because Andy Pettitte “lied” on the stand. Roger Clemens was found “not guilty” because the government could not prove their case beyond a reasonable doubt.
Like I said earlier, the prosecution’s lack of evidence and the defense’s job of discrediting what evidence they had managed to make me rethink my thoughts about Clemens’ guilt. I would estimate that prior to the trial I was fairly certain Clemens took PEDs, and I’m not saying that I now think he is completely innocent. I can tell you I have absolutely no idea whether he doped or not, and I’m probably not going to spend much more time contemplating it.
Did Clemens lie on the stand and did he juice? We will never know for sure. Will he get inducted into the Hall of Fame? Only time will tell and quite frankly, I find it useless debating that. As ProfRobert pointed out on yesterday’s post, it will be interesting to see what happens in the civil trial, where the standard is just a “preponderance of the evidence” – meaning that the evidence proves it is more likely true than not. Clemens also won’t have the right to refuse to testify, as a criminal defendant does – he will have to take the stand. Can you imagine how the media will eat that up?