Roger The Dodger

In my June 2 post about the John Edwards trial ("Three Defendants Will Walk"), I predicted that both Roger Clemens and George Zimmerman would be found not guilty of the charges they face in their high profile cases, and promised to write briefly about them. The Clemens case went to the jury yesterday afternoon, so I'm trying to get this out before they come back with a verdict. The Zimmerman trial, for the shooting death of Trayvon Martin in Sanford, Florida, probably won't start until next year.

Clemens, one of the greatest pitchers in the history of baseball, has been charged with lying under oath to the US Congress in 2008 when he testified that he did not use steroids or permit himself to be injected with human growth hormone ("HGH") in violation of civil laws and baseball rules. After conducting 235 interviews with 179 different people, the US attorneys have found themselves in the unenviable position of having to rely on just one key witness, Brian McNamee, to prove their perjury and obstruction of justice allegations. McNamee was the strength and conditioning coach for the Boston Red Sox, Clemens' team at the time of most of the alleged events. McNamee claims that not only did he inject Clemens, at Clemens' request, with HGH, but that he has saved the vials and needles over the last six years. Clemens' DNA is on those items.

One of the long-standing strategies of litigation attorneys is that they want to make their own witnesses appear to be not just truthful but likable as well. The first follows from the second, as it's much easier to believe a likable person. This is particularly true in jury cases, which the Clemens case happens to be. In that regard, McNamee presents a double-barrelled challenge for the prosecution. Even one of the prosecutors, Gilberto Guerrero, admitted to the jury in his closing argument that McNamee was an unsavory character - - all the more likely, Guerrero said, to be the type of guy to supply drugs to the pitcher. If I were the prosecutor, I would not want to pin my hopes of wining the case on the testimony of a low life like McNamee.

Coincidentally, Clemens has been called a low life himself, and more than once. Several years ago, when the charges first surfaced and McNamee was talking to reporters, Clemens "outed" his wife Debbie by telling the scribes that any steroid and HGH McNamee administered were given by McNamee via injection to Debbie (not Roger) to "help her get ready" for a Sports Illustrated swimwear photo shoot. That was information the Rocket Man need not have shared. Clemens was also the protagonist in a famous bat throwing incident in Game 1 of the 2000 World Series when, while pitching for the Yankees, he threw a chunk of a shattered bat in the direction of the Mets Hall of Fame catcher Mike Piazza as Piazza was running to first. Incidentally, Piazza's career batting average against Clemens at the time of the incident was a whopping .578! Coincidence? Clemens, whose fast ball reached 100 miles per hour, also was known as a bean baller, something that did not ingratiate himself with either his opponents or his teammates.  Well-publicized rumors of a ten year affair with B-list country singer Mindy McCready hasn't helped the Rocket's rep either.  From what I have read, Roger The Dodger is not the sharpest knife in the drawer. That is not his fault. But acting like a dipstick is.

McNamee is not the only witness problem the prosecution had to work around. Andy Petitte, a Yankee teammate and one of Clemens' best friends, gave testimony during a congressional hearing that Clemens admitted to Petitte that he used HGH. But during the present trial Clemens' defense counsel, the superb Rusty Hardin, got Petitte to recant his former testimony, saying that "maybe he misunderstood" what his buddy had told him.

In my post about the Edwards case I wrote that there were common threads running between the Edwards and Clemens cases. Both involve (arguably) despicable defendants who are represented by excellent trial lawyers. In both cases, the star witness for the prosecution is a contemptible former friend of the defendant - - Andrew Young in the Edwards case, and Brian McNamee in the Clemens case. Edwards' daughter Cate faithfully stood by her unfaithful father throughout the trial. Debbie Clemens, along with the couple's four sons, did the same for Rocket, even though he "threw her under the bus." How much of that is window dressing for the eyes of the jurors? Both defendants, if found guilty, would likely be handed prison sentences which would put them away for the remainder of their lives. (Clemens faces thirty years if convicted on all counts.) Jurors are human, so this is likely to weigh on their minds during deliberation.

As in any criminal trial, the burden of proof which the prosecution must meet is "beyond a reasonable doubt" (contrasted with the standard of proof in a civil trial of merely "a preponderance of the evidence"). In both the Edwards and Clemens trials, their defense counsel chose not to call either man to take the stand to testify on his own behalf. Although this could play negatively with the jury ("Why didn't he testify?"), the strategy is the proper non-move if (If!) the defense team is confident that the prosecution did not meet that extremely difficult and lofty burden of proof. Andy Petitte was a weak witness. Brian McNamee came across as a rat. Roger Clemens was a World Series champion and will probably be in the Hall of Fame some day. This is America. Game over. I predict Clemens walks.