Oklahoma Criminal Defense Blog

The federal government has been chasing award-winning former baseball pitcher Roger Clemens since 2007 with a swarm of investigators and prosecutors.  Ninety agents worked on the case and 200 interviews were conducted.  After one jury was stopped due to a prosecution miscue that caused a mistrial, the second jury trial poured out testimony from 40 witnesses over 7 weeks.  The trial concluded a few weeks ago with a jury verdict of not guilty on all counts.

Having faced one count of obstructing Congress, three counts of making false statements and two counts of perjury, all arising from his alleged use of performance-enhancing drugs and his denials under oath to a Congressional committee, Clemens walked out of the courtroom a free man.  Why Clemens ever testified before Congress in 2008 was a mystery to me.  He did not have to appear, but when he did, he testified to a House committee that it was liquid vitamin B-12 and lidocaine with which Brian McNamee,  his former strength coach, had injected him.  But Brian McNamee testified to the same committee that he had injected Clemens with steroids and human growth hormone, both banned performance-enhancing substances. So, to prove perjury, the government had to prove Clemens lied about what actually happened with those injections.

While wondering why Clemens volunteered to stick his head in this noose, let us also wonder why the federal government has gone so long and squandered such resources on sports doping. Reports are that the government has spent $50 million for its investigations of doping for all sports figures over the last few years, this in middle of a slump in the economy.  Yes, the public is entitled to integrity even in its sporting events, but how much are we willing to pay?

Two witnesses against Clemens that were vital to the government’s case had serious weaknesses.  Brian McNamee was the chief witness for the government as the only person who claimed to be an eyewitness.  In fact, McNamee claimed to be the person who injected Clemens with prohibited substances.  In his 24 hours of testimony given over 5 days on the witness stand, McNamee  claimed he had kept a needle and medical waste from one his injections of Clemens in 2001 in a Miller Lite beer can.  But he also said he kept in that can leftovers from injections of other players.  McNamee could not explain how the leftovers from the other players got into that same beer can.  Under cross-examination, he admitted he never told the government agents about putting the materials from the other players in the same can.

After the verdict, jurors said they thought it was devious of McNamee to secret this personal medical evidence in beer can for years.  The jurors also confirmed that McNamee had too many consistencies. The jurors did not believe McNamee’s claim that he had preserved from the incident and kept it in beer can for 7 years. He admitted he initially lied about his involvement with steroids.  Clemens’ criminal defense lawyer painted McNamee as a chronic lier, the jury agreed, and that spelled doom for the government’s case.

Clemens’s criminal defense attorney raised numerous unsavoury personal details from McNamee, that he had tampered with a dead body when he was a New York City policeman, he lied to investigators looking into a Florida incident in 2001, that he had two driving-under-the-influence arrests in 2002, and that he got caught up in an Internet fraud investigation after ordering diet pills over the Web in 2004.

The other important witness for the prosecution was Andy Pettitte, Clemens’ long-time friend and teammate.  Pettitte testified to hear an admission by Clemens, the next best thing to an eye witness. Pettitte testified Clemens acknowledged to him in 1999-2001 Clemens had used HGH, a growth hormone.  But then, every criminal defense attorney’s dream, on cross-examination, Pettitte backed up and admitted he was not sure now what Clemens had said those many years ago and admitted it was fair to say there was only a “50/50″ chance he misunderstood Clemens.  Unlike McNamee, Pettitte had no fleas on him and had no apparent motive to lie about his friend, Clemens.  The government lawyers knew they had problems with McNamee, but Pettitte’s cratering was surely unforseen.

So the government’s case went from one eyewitness and one admission from the defendant to none of the above, and the hard tip of the government’s spear turned out to be marshmellow.  No wonder the jury had reasonable doubt about Clemens’ guilt.