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So, will Clemens get convicted?

Aug 19, 2010, 2:30 PM EDT

The Feds' convict 90% of the people they indict, but I think Clemens has a decent chance of beating this thing.

As I said earlier today: an indictment is one thing. A conviction, well, that’s something else entirely.  With the massive, massive caveat that I haven’t seen the indictment yet, my gut tells me that Clemens stands a good chance of walking away from these charges a free man.

Why?  His accuser, mostly.

There will certainly be more to the feds’ case than Brian McNamee’s word against Roger Clemens’ word.  There may be some DNA evidence on the syringes McNamee kept. There will likely be testimony from Andy Pettitte, Jason Grimsley, Jose Canseco and others. It’s not going to be a two man show. But Brian McNamee is the most important prosecution witness, and his credibility is more than a bit shaky.

McNamee is an admitted drug dealer. Worse for his credibility as a witness is that he has a history of lying or being suspected of lying, and on at least one occasion, it occurred in some seriously seedy circumstances.

While employed by the Yankees, he was caught having sex in a hotel pool with a woman
who was basically passed out
. Witnesses told police that they believed
McNamee drugged the woman. Police asked McNamee about it and he denied it.
The police reported reflected their belief that they believed McNamee was lying to them, but ultimately charges were never brought due to lack of evidence. More germane to this particular case is that McNamee once wrote an editorial for the New York Times defending
Roger Clemens against accusations of PED use. He later admitted that the whole thing was made up.

While McNamee will certainly be able to say that (a) the lack of charges in the pool thing back up his story; and (b) that he lied in the New York times in an effort to protect his employer, the fact is that, at a trial, he will be asked the one question ever lawyer waits his whole career to ask of an adversarial witness: “Mr. McNamee, were you lying then or are you lying now?”  Defense counsel — if they have a lick of ability — will pummel McNamee, far more so than most prosecution witnesses get pummeled in cases like this.

None of which is to say that McNamee is lying now.  Having closely followed the Mitchell Report and the Congressional hearing and everything before and since, it’s my gut feeling that he’s telling the truth.  But juries are outrageously sensitive to questions of a witnesses credibility, and McNamee will come under serious fire on this score.

Many will cite the success rate of federal prosecutors in handicapping this case. It’s something like 90%.  But it’s less in perjury cases and even less in cases involving well-heeled defendants with fancy defense counsel who fight the case hard — as Clemens no doubt will — as opposed to copping a plea.

Throw in the very damaged credibility of the government’s primary witness, and I think Clemens has a puncher’s chance. 

  1. okobojicat - Aug 19, 2010 at 2:41 PM

    Craig,
    I write this in hope it won’t be received as too much criticism, more as a warning. Don’t let HardBallTalk turn into Clemens Saga. I think your three posts are great so far, but I come here for baseball coverage and don’t want to focus exclusively or so much so on clemens that everything else is destroyed. Don’t become the Dodger Divorce blog or the Texas Ranger Bankruptcy blog (I thought your coverage/insight into the bankruptcy was great). Stay hardballtalk with the occaisionaly clemens snipe…err, commentary. Keep my afternoons interesting and my morning unproductive, and that would be great.

  2. Craig Calcaterra - Aug 19, 2010 at 2:43 PM

    Don’t worry, okobojicat: I only have one more Clemens post to go, and it will be a short one. Then back to your normal baseball programming.

  3. Trevor B - Aug 19, 2010 at 2:56 PM

    I have a good feeling that Clemens might be getting a conviction; there are a lot of higher ups out there (especially the gov’t) looking for an ass to kick. Clemens (as Craig pointed out earlier) really did stick his ass out there. The conviction would probably be for a small degree of purjury and essentially get Clemens a wrist slapping and a few public statements, but the big boys get to say “Yeah, we were right.”

  4. Simon DelMonte - Aug 19, 2010 at 3:06 PM

    No, please talk about Clemens. It means you aren’t talking about K-Rod, or the Mets.

  5. Joe - Aug 19, 2010 at 3:13 PM

    Just skip the Clemens content if you don’t want to read it. These guys generate 50 posts a day.

  6. Detroit Michael - Aug 19, 2010 at 3:14 PM

    I rely on Craig “Shysterball” Calcaterra to provide extra coverage on legal issues pertaining to baseball.
    If you’ve got more to write on Clemens, that’d be great with me because this is an area where you tend to be more knowledgable than other bloggers are.

  7. BC - Aug 19, 2010 at 3:26 PM

    Motion seconded.

  8. Utley's hair - Aug 19, 2010 at 3:40 PM

    Being so sick and tired of all the PED stuff, as well as a dyed in the wool Philliephile–and by default, a Mutt hater—feel free to ramp up the K-Rod stuff. Sorry Simon and BC.

  9. RichardInBigD - Aug 19, 2010 at 3:42 PM

    AMEN, BROTHER!!!

  10. chw - Aug 19, 2010 at 5:40 PM

    Craig, the jury will never hear about the swimming pool incident. Believe me, the Feds have a lot more than McNamee if they are going to bring a high profile case like this. Also, they are not going to have to prove that Clemens was an inveterate drug abuser–just that he lied in his testimony.

  11. Jimee Johnson - Aug 19, 2010 at 9:02 PM

    He’ll be alright as long as he does not pull a Jose Canseco.

  12. bobauss - Aug 19, 2010 at 10:15 PM

    Send the rest of the Yankees to jail too!
    Go Redsox !

  13. Florida727 - Aug 20, 2010 at 8:08 AM

    I’m quoting another poster but thought it worth sharing because it made me laugh: Clemens is being indicted for lying to politicians. Quite the irony, wouldn’t you say?

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