Roger Restored

Was the jury verdict in the Roger Clemens case more a comment on the quality of the lawyering than on Clemens’ guilt or innocence?

Does Clemens’ acquittal on all counts restore the righthander to his rightful prominence in the pantheon of great hurlers or will he be perceived, like OJ Simpson, as a guilty athlete who got off?

Clemens was charged with lying before Congress. Did the jury agree with Clemens’ lawyer Rusty Hardin that Congress should never have held hearings on the Mitchell Report, which was a non-governmental operation commissioned and paid for by Major League Baseball?

If we forgive Roger because he went to trial and was acquitted, shouldn’t we afford the same beneficence to other suspected and admitted users who did not receive their day in court, and accept their records without question?

The answers to these questions will evolve over time, but one thing is certain. The Clemens verdict was less a determination that Clemens never used steroids than an expression of distate for the government’s methods and the integrity of its main witness, Brian McNamee.

Clemens is certainly entitled to bask in his victory, and he will claim vindication for his position that he never used steroids or Human Growth Hormone (HGH); but you would have to believe in the tooth fairy to have heard the testimony in this case and conclude that Clemens never touched the stuff.

Because in the words of defense attorney Rusty Hardin, the government’s prosecution of Roger Clemens was a “horrible overreach,” and because all roads of the government’s case lead through McNamee, who was exposed as a more persistent liar than Alibi Ike, the jury felt compelled to side with Clemens – characterized throughout the trial, even by prosecution witnesses, as a man of great talent, character and determination – over an avaricious government and the very sleazy McNamee.

The government based its case against Clemens almost entirely on McNamee, who testified that he injected Clemens with HGH and anabolic steroids on multiple occasions in 1998, 2000, and 2001, first in Toronto when he was employed as a strength coach with the Blue Jays and then while working for the Yankees, who hired him at Clemens’ request in 2000.

As corroboration for McNamee, who has dealt drugs, lied under oath, forged documents, and suffered two DWI convictions during his checkered past, the government offered syringes, vials and cotton balls saved by him for seven years and allegedly containing Clemens’ DNA, and the testimony of former teammate Andy Pettitte that Clemens admitted steroid use to him in 1999 or 2000.

McNamee first told his story to the Mitchell Commission, which was created by MLB in response to pressure from Congress; but Congress was not involved in the investigation. The Mitchell Report was released in December, 2007, naming Clemens as a user. The 7-time Cy Young award winner challenged the Report’s findings publicly, held a press conference, and sued McNamee for Defamation.

The House Committee on Oversight and Government Reform, bruised by Clemens’ challenge to the accuracy of the Mitchell Report, called hearings to investigate the matter and subpoenaed Clemens to testify. Congress didn’t have to do this. Its decision to call Clemens was politically-charged, backed by Democrats and opposed by Republicans.

In depositions before House investigators, and then again before the full committee, Clemens made the statements denying steroid use which gave rise to his indictment two years later for six counts of lying to Congress.

But the threshold issue before the jury was not whether Clemens lied to Congress, or whether he took steroids or HGH but whether the government proved beyond a reasonable doubt that Clemens made the alleged mistatements with criminal intent.

Did the government prove its case on any count beyond a reasonable doubt?

As the quick jury verdict indicates, the prosecution did not come close to meeting its burden. When you consider that a) McNamara was shredded on cross examination by the ultra slick Hardin and acknowledged at least fifteen different instances of mistakes, bad memory or lying during the progression of the case; b) McNamee’s drug paraphernalia exhibit was deemed “hopelessly contaminated” by defense expert Bruce Goldberger; and c) Pettitte admitted on cross examination that he was only “50% certain” that he understood Clemens correctly during their pivotal conversation in 1999-2000, the government’s case became infected with reasonable doubt.

Things went south early for the feds when former and current Yankee Pettitte was called to the stand out of sequence, before McNamee, because of his obligations to the Yankees. Resplendent in a gray pinned-stripe suit, tanned and lean, the left-hander glowed like a movie star. ‘What a dreamboat,” purred a woman attorney in the courtroom.

Pettitte was deemed vital to the case against Clemens because unlike McNamee, he was a churchgoer and family man and had a reputation for truthfulnes. Compared to McNamee, he was Abe Lincoln. Pettitte had admitted his own steroid use to the Mitchell investigators, and because of his strong religious convictions, had felt compelled to tell the truth about Clemens despite their close relationship.

It was high theatre to see these celebrated Yankees squaring off in Courtroom 6. Five years ago, who could have imagined this scenario?

On direct examination, Pettitte seemed uncomfortable, but he testified consistently with the affidavit he had provided the Mitchell people, namely that Clemens had admitted steroid use to him during a work-out session in Clemens’ home gym in 1999 or 2000. But Pettitte did not want to be the one to send his buddy Roger up the river. He’d been sandbagged by the feds, but damned if he was going to make it easy for them.

Sensing Pettitte’s vulnerability, defense attorney Mike Attanasio, imported by Hardin’s firm to assist in the case, chipped away at the level of Pettitte’s certainty. “Is it fair to say that there’s a 50-50 chance that you misunderstood Clemens,” asked Attanasio. “That’s fair,” said Pettitte.

Petttitte had slipped the feds a curve that was nastier than any of the low and away sliders he used to befuddle Bryce Harper Saturday in Washington. Prosecutor Steven Durham attempted to repair the damage on re-direct, but the lasting image of Pettitte’s testimony is that it was “insufficiently definitive,” in the words of Judge Reggie Walton.

McNamee subsequently told his story, but by the time Hardin finished with him, McNamee was dismayed, disheveled, and discredited. The defense then presented 21 witnesses (not including Clemens) who effectively rebutted every allegation of the indictment. Attanasio and Hardin outclassed the government lawyers during closing argument.

Four and one half years after his ordeal began, Roger Clemens has put his legal problems behind him. It has been estimated that his legal fees to the Hardin firm are between ten and twenty million dollars.

His freedom assured, his legacy restored, his ticket to the Hall of Fame punched, Clemens probably thinks he got a bargain.

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Nats’ manager Davie Johnson is considered a premier game strategist and one of the best skippers in the game, but overlooked in the Yanks’ sweep of the Nats this weekend was a managerial miscue by Johnson that arguably cost Washington a victory in Saturday’s 14-inning second game of the series.

With the game knotted at 2-2 in the Yanks’ top of the sixth, Jordan Zimmerman was scheduled to face number 8 hitter Eric Chavez with two out and a runner on first. On deck was starter Andy Pettitte, who had a low pitch count through five innings and was projected to pitch at least through the seventh. Zimmerman pitched to Chavez who ripped a double to right center that drove in the lead run.

Though conventional wisdom is that you should not intentionally walk a runner into scoring position, the more creative, and correct, move here would have been to walk Chavez and force Yankee manager Joe Girardi to make a choice – Let Pettitte bat or pinch hit. In the first case, Zimmerman would be facing a weak-hitting pitcher rather than the dangerous Chavez. In the second case, Pettitte is out of the game.

Because Girardi emphasizes getting distance from his starters, the guess here is that he would have let Pettitte bat in a tie game rather than be forced to go to his bullpen early. Johnson, regrettably, did not force Girardi to choose.

The next day, Nat fans and sports talkers alike complained that the bad call on the play at the plate in the eighth inning cost the Nats the game. There was no discussion of Johnson’s decision to pitch to Chavez, but there should have been.


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