Aug 19, 2010, 2:30 PM EDT
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.
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