Rocket Pitches A No Hitter; DOJ Whiffs A Golden Sombrero+2

Six up, and six down for William Roger Clemens. From Jim Bambach at Newsday:

Former Yankees pitcher Roger Clemens was acquitted Monday on all six counts in his trial on charges he lied to Congress when he denied using performance-enhancing drugs, ending a 41/2-year battle to clear his name.

The jury deliberated for less than 12 hours before reaching a verdict, capping a two-month trial at which 46 witnesses appeared, including the wives of Clemens and accuser Brian McNamee.

Yep, six counts alleged, six counts acquitted on. Not a hit on any of them. And if the jury deliberations had not have been broken up by a weekend, the verdict may well not have taken even the nine plus hours it did. From the clear call of the unanimous verdicts, I would also hazard a guess that the jury may not even have been out the short time it was but for the fact lead Clemens defense attorney Rusty Hardin opened a wee door in cross-examining the tainted prosecution star witness Brian McNamee, allowing for, eventually superfluous, rebuttal evidence to come in by the DOJ to try to bolster their flawed criminal witness McNamee. Even that was clearly nowhere enough for the wise jury.

The entire substantive DOJ case flowed through two discredited and sham witnesses, Brian McNamee and the always questionable Fed Investigator Jeff Novitsky. If they were not discredited before, let the record reflect they are now.

More from Bambach:

Clemens’ attorney Rusty Hardin called his client “a helluva man.”

“This is a celebration for us,” Hardin said. “Let me tell you something. Justice won out.”

The loss was a blow to the Justice Department and the prosecution, which last year caused a mistrial on the second day of the trial.

Prosecutors declined to comment on their way out of the courthouse.

Yes, the Brave Sir Robin like crack prosecutors at DOJ so ethically turned their heads and fled like Sir Robin. Brave Sir Robin.

The focus, though, is easy to peg on Brian McNamee, and does he deserve it. But, remember, the single person who pushed this puppet theater, in addition to George Mitchell and corporate interest, Bud Selig, was Jeff Novitsky. One still wonders if the story of the MLB, IRS, DEA, HOS/GRC(Waxman/Congress) and Novitsky “workgroup” will ever be fully disclosed; but the surface appearance is not all that attractive.

But, hey, let’s not re-cover what has already been said. Here is how I described the gig in February of 2008:

First off, if the Federal government thinks Roger Clemens was seriously involved in steroid and HGH use and promulgation, investigate and prosecute him. But the government doesn’t give a rat’s ass about that, they are hot after Clemens because he had the audacity to challenge the God/Petraeus like Mitchell report. And make no mistake about it, if you can’t believe the Clemens portion of the Mitchell report, you have to wonder about the the whole thing (save for a few general recommendations) and the quality of work that went into it. As I said below in the comments, the Congress is vested in the Mitchell report Very heavily, because they think it was the implementation of their last little dog and pony show with McGwire, Sosa and Palmeiro (by the way, you don’t see any of those guys being hammered like Clemens do you?) and because George Mitchell is very close to many in the Congressional leadership including, most notably, Henry Waxman. This is all about bucking up the Mitchell report and, additionally, the work of Novitsky, who is in the middle of the whole mess and the Barry Bonds portion, whom they are dying to nail.

The main issue that bugs the bejeebies out of me on this mess is a concept in criminal law known as “parallel prosecution”. Simply put, what this means is multiple prosecutions, by multiple coordinated governmental entities, of one individual, at the same time, usually in an effort to gain advantage over him or deny his ability to effectively defend himself. There are many examples of this in the law, the layman simply doesn’t think about it in those terms, so never really grasps the implications. One common example in drug crimes is the attempt by the government to civilly seize and forfeit the defendant’s property so that he has to give testimony and answer questions in order to keep his property while they are prosecuting him on the underlying criminal case where, of course, he has a 5th Amendment right to silence and to make the government prove his case. The problem with this is that the government is using an artifice to breach the defendant’s 5th Amendment right against giving testimony against himself. If he doesn’t stand in and give testimony and subject himself to full examination, he loses his property because of an alleged crime he has not even been convicted on; if he does fight, he is opening himself up to examination that can be used against him.

This is the problem with the Clemens scenario. Clemens was the big fish in the Mitchell report and, make no mistake about it, Mitchell needed a big fish for his report, and preferably a white one to offset some of the complaints made about the major focus on Barry Bonds in the past. It is my understanding that Mitchell did not originally want to name individuals in his report, but id so after being urged very strongly by congress and MLB to do so. The second that Clemens exercised his right to say “Hey, thats not right, I am innocent”, the weight of the world was reigned down on him. He immediately was accused of lying and became the subject of discussions of criminal charges because he was challenging the credibility of the mighty Mitchell report. But Clemens was not afforded the opportunity to have the Government put up or shut up with their evidence against him and to have his right to test that evidence for weight and veracity. Instead, he was immediately under the combined microscope of the IRS, FBI, DEA and the Department of Justice (yes they are all actively involved in this; you just don’t hear about it). Then, to top it off, the United States Congress starts getting in on the act and compelling testimony under oath. Before he has ever been charged with any crime. All because he had the audacity to say “I am not guilty”. And all of this, at the time of the Mitchell Report, was based on the unsubstantiated tales of a known, proven liar and suspected rapist, with no physical evidence and no corroboration. That is pretty chilling if you ask me.

Evidence counts, and this is always where the real evidence, put to even the most fundamental test, has led. I’ll be honest, for the worthy job the inestimable Rusty Hardin did on this case, the one huge thing he did wrong was to open the door on cross-ex of the government’s witnesses, most notably McNamee for allowance of rebuttal confirmation of McNamee’s alleged honesty as to other MLB players such as Andy Pettitte and Chuck Knoblaugh. But the jury clearly, and unequivocally, drew a judgment on where the credibility was between McNamee and Novitsky on the one hand, and Roger Clemens, on the other hand. The vote was the latter, and not the former.

The DOJ went six with Roger Clemens and the Rocket no-hit them. And William Roger Clemens hung a Golden Sombrero+2 on the DOJ. Hang that picture with John Edwards, Ted Stevens and Barry Bonds. Not real flattering for the PIN-Heads at DOJ.

[As a well deserved thanks, I would like to point out Jim Baumbach of Newsday, Mike Scarcella of ALM, TJ Quinn of ESPN and Del Wilber of the Washington Post. Their Tweeting and reporting was absolutely incredible, individually and as a whole. I know what scintillating coverage from court, especially the court of Judge Reggie Walton at the DC District Courthouse is all about; over five years ago the owner of this blog and some other kick ass girls (i.e Jane Hamsher, Jeralyn Merritt and Egregious) set the standard. I do not say this gratuitously, the new crew truly did yeoman’s, and incredible, work.]

Oh, and, again, after seeing this dynamic map of the incredible extent of the DOJ investigation of Roger Clemens, any more questions on why DOJ cannot get around to prosecuting banksters??

13 replies
  1. Snarki, child of Loki says:

    Prosecuting Clemens for “lying to Congress” is like prosecuting a 4 year old for punching a world heavyweight boxer.

    Put Alberto Gonzalez in the pen, and then we can talk about it.

  2. Petrocelli says:

    I heard this, while enjoying the Euro matches and immediately thought of you, bmaz.

    High Fives to you and pls buy Rusty a drink for me, whenever your paths cross.

  3. GulfCoastPirate says:

    Nice write up. I thought of you yesterday when I heard this on the radio driving home.

    Is it time for football season yet?

    Why no trash talk for the US Open? Lots of Tiger bashing we could have gone over.

  4. Bay State Librul says:

    It twas his split-fingered fastball that won the hearts and minds of the 12. Ever heard of Charlie O’Brien?

    “Clemens was also aided by the testimony of ex-teammates, especially that of former Blue Jays catcher Charlie O’Brien. O’Brien gave the jury an easy-to-understand reason for Clemens’ success as an aging pitcher. Namely, according to O’Brien, Clemens learned a new pitch, the split-fingered fastball. By O’Brien’s account, the pitch revitalized Clemens’ career, first with the Blue Jays and then the Yankees. Give Clemens’ legal team credit for supplying jurors with an alternative history to consider while they deliberated.” Michael McCann

  5. Bay State Librul says:

    Tom Verducci from SI makes a point

    “In astonishingly wrongheaded comments that makes you cringe to think about the jury system, one juror, Joyce Robinson-Paul, told the New York Daily News that she figured out McNamee’s motivation: She said it was because McNamee grew angry that Clemens played in public a tape of a secretly recorded conversation with McNamee that included a mention of McNamee’s ill son. “There was the motive,” Robinson-Paul said to the Daily News. “Roger Clemens had gone overboard for him, and this is how he repaid him.” She said, “We felt there was something here. It was vengeance probably.”

    Are you kidding me? Clemens recorded the conversation on January 4, 2008 — six months after McNamee already gave lawyers for the Mitchell Report chapter and verse about shooting up Clemens with steroids. The first of three such interviews with the Mitchell investigators took place July 9, 2007. So we have a juror assigning motivation to McNamee to an event that occurred after he already told the world through the Mitchell Report that Clemens used steroids. I’m surprised such an admission by a juror has not created more noise, especially from the prosecutors.”

    Read more:

  6. bmaz says:

    @Bay State Librul: Ah, but PRESTO! after Clemens recorded the Fed stool pigeon McNamee on what was almost certainly a recorded event for McNamee’s handlers, Novitsky and the DOJ task force working the BALCO and MLB cases at the time. and long after McNamee first said nothing about Clemens, and then fingered him but claimed to have no evidence other than his statement, THEN about exactly a month later from the supposedly innocuous call you describe, McNamee magically “finds” his beer can full of crud. So, it is actually pretty easy to see where they are coming from and Verducci is more than a little behind the fact curve.

  7. pdaly says:

    Nice writeup. Chilling that so many government agencies were involved in this little witch hunt when the country’s economic, social and legal foundations are being hacked apart by lack of oversight.

    Now that DoJ has lost another one, as you pointed out, I suppose Curt Schilling can only assume he’s the next show in town:

    Although I have to admit to some amount of schadenfreude that Schilling as a Republican believes in small government until the corporate life gets rough and then looks for taxpayer handouts.

    Schilling also was quick to invoke “guilty until proved innocent” wrt Clemens (although Schilling was blogging about the non-courtroom, sort of):

    “Roger has denied every allegation brought to the table. So as a fan my thought is that Roger will find a way in short order to organize a legal team to guarantee a retraction of the allegations made, a public apology is made, and his name is completely cleared. If he doesn’t do that then there aren’t many options as a fan for me other than to believe his career 192 wins and 3 Cy Youngs he won prior to 1997 were the end. From that point on the numbers were attained through using PED’s. Just like I stated about Jose, if that is the case with Roger, the 4 Cy Youngs should go to the rightful winners and the numbers should go away if he cannot refute the accusations.”

    I wonder if “guilty until proven innocent” will be the same legal framework within which Schilling will place himself as he deals with his own legal troubles.

    on edit: Here’s Schilling’s blog:

  8. Bay State Librul says:


    Look, you are a lawyer and know the law. I respect your knowledge of the law. Can you give the same respect to baseball writers?
    Ask any sports writer who pounds the beat, day in and day out, and they
    will say Roger did the dirty deed. It’s tough to prove a drug case, ask
    Bmaz, this case was about baseball and the jury knew nothing about
    the game and what was happening at the time
    For Clemens it was about competition, if he knew someone was using
    steroids, it would put him at a disadvantage.
    Rusty devised an alternative story and McNamee was trying to save his sorry arse, and Andy likes Roger.
    I know Roger loves his wife, the American flag, Texas, and worked his arse off. To me, he’s still a lying sack of shit.
    “Clemens acquittal is justice served”, Bob Ryan says.
    Indeed. It was a he said, he said case” and Rusty is a first-rate lawyer.
    Advantage the Rocket.
    Ryan goes on “If anyone wants to get up to speed on the Clemens matter, it is necessary to read Jeff Pearlman’s “The Rocket That Fell to Earth.
    This is not a hysterical screed. This is a well researched book authored by a legitimate journalist. I just say, read it and see what you think. Ask yourself then if any juror who actually had read it might have been inclined to change his or her vote.”
    Have you read the book?
    Also, you never answered the question on Armstrong.”

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