Clemens wins total victory while feds strike out completely
Roger Clemens not guilty of perjury, obstruction and making false statements
Don't expect anymore perjury charges against baseball players
Clemens now faces a civil case brought by his former trainer, Brian McNamee
After 10 weeks, the jury in U.S. v. Roger Clemens has given the seven-time Cy Young Award winner his most cherished win: a not guilty verdict on all six counts (for perjury, false statements and obstruction of Congress). This is a complete victory for Clemens. All 12 jurors unanimously agreed that the government failed to persuade them, beyond a reasonable doubt, of the charges. This means that there is no chance of a retrial, which would have been a possibility had there been a mistrial (a non-unanimous jury vote) on any of the counts.
By losing, the Justice Department will attract only more criticism about its decision to prosecute Clemens -- a decision that had already drawn rebuke as wasteful and unlikely to prevail. When coupled with the Justice Department losing on the three perjury counts in the Barry Bonds trial in April 2011 (Bonds was convicted on one count of obstruction of justice and sentenced to house arrest), the government's steroids-related cases against arguably the best hitter and best pitcher in baseball over the past 30 years can only be viewed as failures. Do not expect any more perjury charges of baseball players.
In the Justice Department's defense, a decision to pass on prosecuting Clemens would have been viewed as preferential treatment for a star athlete. It also would have disregarded the wishes of members of Congress who openly stated doubts about Clemens' truthfulness and contravened the grand jury that indicted him. Still, federal prosecutors -- who win 90 percent of their trials -- went a meager one for 10 in counts against Bonds and Clemens, and Bonds is appealing that one count.
So why did Clemens lose? Most likely, it was because the only eyewitness who implicated him was not sufficiently credible. Brian McNamee, though more believable on the stand than some expected, could never escape his past. Clemens' lawyers, Rusty Hardin and Michael Attanasio, pounded on McNamee's previous lies and displays of questionable character. McNamee's estranged wife, Eileen, also undermined him. She was one of the last witnesses in the trial -- meaning her testimony was likely fresh on jurors' minds when they convened -- and she completely contradicted his earlier testimony about storing syringes and other materials purportedly implicating Clemens. Lastly, McNamee's method of storage, primarily a Miller Lite beer can and a Fed Ex, was too easy for Clemens' legal team to attack, if not on scientific grounds than on commonsensical ones. In a jury trial, commonsensical explanations can be far more effective than those grounded in science.
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.
As for what's next for Clemens, McNamee has sued him civilly for defamation, claiming that Clemens defamed him when he called McNamee a liar. Today's criminal verdict does not mean that Clemens will win in civil litigation. Jurors deciding that the government failed to convince them beyond a reasonable doubt of Clemens' guilt does not mean that a civil jury will believe Clemens is probably telling the truth. Still, today's verdict gives Clemens an upper-hand. McNamee may also be understandably tired of this litigation and seek a settlement. Clemens, who could be called to testify in the civil case and who demonstrated limited skills as a testifying witness when he appeared before Congress (he chose not to testify in this trial), may also want a settlement
Clemens will be eligible for the Baseball Hall of Fame in this year's balloting. Like he did in the aftermath of the Mitchell Report's release in 2007, expect Clemens to hit the airwaves professing his innocence. This time he will be armed with today's verdict, which he will undoubtedly characterize as proving his innocence. The verdict, of course, does not necessarily mean he is "innocent" when it comes to using Human Growth Hormone and illegal steroids. It simply means he is not guilty of criminal charges relating to his Congressional testimony about HGH and illegal steroids. Whether this distinction matters in the court of public opinion remains to be seen.
Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV's On-Air Legal Analyst. Follow him on Twitter.
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