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The difference between the Bonds and Clemens trials

Apr 18, 2011, 10:00 AM EDT

Roger Clemens

The New York Times has an article up this morning in which various legal experts talk about the differences between the Barry Bonds trial and the upcoming Roger Clemens trial. Both are for perjury and both are about steroids, but the folks the Times spoke with believe that the fact that Clemens is accused of lying to Congress might make things harder for the prosecutors. The harm — lying to an oddly politically-motivated Congress as opposed to a grand jury in the course of a criminal investigation — may seem more dubious to jurors, they say.

And then there’s the question of, well, the questions:

Michael N. Levy, another former prosecutor, said Clemens might have an advantage because members of Congress were not as skilled as federal prosecutors at questioning witnesses about criminal matters. As a result, his lawyers may be able to raise questions about whether Clemens really lied in response to imprecise questions.

That part seems nuts to me. The entire problem with the Bonds prosecution were the vague and rambling questions. Congress was awful at this when it came to the Sammy Sosa/Mark McGwire/Jose Canseco stuff — in my mind it’s Congress’ awful questioning which allowed Sosa to skate — but when Clemens was under oath he was asked multiple straight forward questions about his steroid use. And he gave multiple straight forward answers. Answers which were directly contradicted by Brian McNamee.

And while, yes, Brian McNamee has his own credibility issues — he’s primed for the always-wonderful “well, were you lying then or are you lying now, Mr. McNamee?” question — the fact that someone will take the stand and call Roger Clemens a liar when no one could do that to Bonds makes all the difference in the world.  Enough difference to where I think Clemens is in way, way more trouble than Bonds, regardless of the identity of the people he lied to.

  1. bigharold - Apr 18, 2011 at 10:15 AM

    McNamee is a problem for the prosecution on two fronts. Not only do you have the “.. were you lying then or are you lying now…” issue. McNameee also never came forward on his own. His accusations regarding Clemens are the result of himself being arrested. The defense will be sure to beat the jury over the head with what McNamee was “promised” in exchange for his testimony.

    • chrisny3 - Apr 18, 2011 at 4:05 PM

      McNamee was never arrested. Rather, he got caught up in a steroids investigation centered on Radomsky. He was “promised” immunity from prosecution so long as he told the truth. I don’t know how this hurts his credibility. In fact, because he was a reluctant witness, and didn’t come forward in order to make money or a name for himself but was compelled to do so by the government, I think it helps his credibility.

      • Craig Calcaterra - Apr 18, 2011 at 4:11 PM

        It may or may not ultimately make a difference in the case, but every government witness who has some sort of deal with the prosecution is cross-examined on it. Interviews with jurors after trials routinely say that these sorts of deals negatively impact the credibility of witnesses. There is a lot of scholarship on this and, anecdotally speaking, prosecutors prefer not to build their cases on the backs of such witnesses alone, even if it’s often necessary.

      • chrisny3 - Apr 18, 2011 at 4:22 PM

        Don’t you think it will make a big difference between someone facing serious charges and serious jail time vs. someone like McNamee who wasn’t even charged with any crime at the point he agreed to cooperate with Mitchell?

        Radomski didn’t even get any jail time for his guilty plea, and compared to Radomski, McNamee was small potatoes.

      • Craig Calcaterra - Apr 18, 2011 at 4:26 PM

        That could make it worse. He was distributing illegal drugs. The charges could have ranged from nothing to drug trafficking depending on what the authorities wanted to do with him. If I were cross-examining him I would make it clear to the jury that he was facing possible federal drug charges, which are serious.

        I’m not saying that is the end of the story. There are also a lot of reasons to believe him as well. I’m merely saying that you cannot discount the fact that McNamee’s credibility is going to be a big deal here. Indeed, it’s probably the only shot Clemens has, so they’re going to go after him hard.

      • chrisny3 - Apr 18, 2011 at 4:58 PM

        What could make it worse? The fact that there were no actual charges filed against him at the time? Why wouldn’t that make it better?

        Also, we’re not talking cocaine or heroin here. These are PEDs, more of concern to sports fans like me than to law & order citizens worrying about crime on the streets.

      • Craig Calcaterra - Apr 18, 2011 at 5:04 PM

        Because uncertainty can be the worst thing of all. The defense will (or should) say that McNamee could have faced any number of charges. Possibly very serious ones. And that he was desperate not to get caught up, so he decided to turn on Clemens as soon as they mentioned his name. That as soon as they had the spotlight on him he went soft, after years of lying to protect Clemens, he immediately sought to cover his own butt because he feared what the feds might do to him.

        That’s how it will be portrayed anyway. The more uncertain McNamee’s fate, the more leeway the defense has to portray it as potentially serious. And no prosecution witness will get on the stand to say that they wouldn’t have gone hard on him, because they simply don’t do that.

        This is about the jury’s perception. Not about what real jeopardy McNamee faced.

      • bigharold - Apr 18, 2011 at 5:25 PM

        I stand corrected about him being arrested but the point is still valid. He didn’t get arrested because he sang like a canary.

        As Craig pointed out his credibility will be an issue. Add to that, the part of this sorted tale about him saving the syringe that he allegedly used on Clemens. That is going to bring his integrity into question. The only reason he’d have to save the syringe is in the event that he need it to bargain his way out of something with law enforcement. It’s not like he was ever going to auction it on ebay or sell it at a memorabilia show.

        Regardless of whether one thinks Clemens used PEDs or not, whether you like him or not the sole witness against him, McNamee is not without his short comings. He comes across as a self serving rat that premeditatedly positioned himself so that he wasn’t going to get hurt. That doesn’t mean he’s not telling the truth but it does presents valid concerns about his character.

        If the prosecution expects to win this I hope they have more evidence than McNamee to corroborate his story.

      • chrisny3 - Apr 18, 2011 at 5:33 PM

        “The defense will (or should) say that McNamee could have faced any number of charges. Possibly very serious ones.”

        Why wouldn’t the prosecution then counter with someone like Novitzky, who would tell the jury the maximum charges McNamee would have faced. And since Radomski didn’t even get any jail time, and he was by leaps and bounds a bigger dealer than McNamee (who only sold to his own clients who hired him as a trainer), the charges would probably be relatively minor and entail only probation. Novitzky, according to reports, was a very good witness.

      • Craig Calcaterra - Apr 18, 2011 at 5:40 PM

        Because it’s very useful for federal authorities to maintain the maximum leeway about how they charge. They don’t want to go on record saying “this much, and no more” for anyone, especially not in some relatively small case like this. Plus, if McNamee all of a sudden decided to change his mind and break his deal with the feds, they’re not going to want to be bound by anything.

        The most you’ll see on this point from the feds is, on direct examination of McNamee, they’ll walk him through the deal with the government so as to raise this issue first. In order to bolster his credibility they’ll have him testify about the nature of the deal, that he had not been charged with anything, etc. It will help. And the defense’s attacks won’t necessarily be fatal.

        Finally: we have to remember something: Clemens spent a long time trying to have McNamee’s statements characterized as defamation. It was a dumb attempt, but recall that the way those claims got dropped was that McNamee argued that the statements were compelled by the government. In other words: they forced him to talk. In light of that, he can’t very well claim that the government didn’t compel him to testify here.

      • chrisny3 - Apr 18, 2011 at 6:26 PM

        Craig, I certainly didn’t argue that the government didn’t compel McNamee to cooperate with Mitchell. In fact I said they did just that, in my earlier comment above.

        And I think the motive for his cooperation will ultimately work in McNamee’s favor because hasn’t it been Clemens’ position all along that McNamee kept the syringes in order to just extort money later down the road from him? McNamee didn’t come forward to make money, get famous, or out of revenge or a grudge against Clemens. And he knew that if the government caught him a lie they would turn around and charge him.

        McNamee’s motives already came under fire during the congressional hearings where some of the Republicans tried to viciously attack him. And despite the fact that there was no judge there to moderate those attacks, I think he came off quite well and very sincere and convincing. And I think this is an indication of how he’ll come off as a witness during Clemens trial as well. He’s probably much more savvy today than he was a few years ago too. Ultimately, it is the demeanor and behavior of the witness that the jurors take very seriously. I think McNamee will make a better witness than Steve Hoskins did.

      • chrisny3 - Apr 18, 2011 at 6:38 PM

        Add to that, the part of this sorted tale about him saving the syringe that he allegedly used on Clemens. That is going to bring his integrity into question. The only reason he’d have to save the syringe is in the event that he need it to bargain his way out of something with law enforcement.

        Harold, that is simply your speculation on the motive, unsupported by any facts. That doesn’t even make sense, as the syringes supposedly came from around 2002 and there was no prosecution against Clemens at that time. So there would be no leverage there regarding the syringes.

        Further, McNamee is NOT the only witness against Clemens. There is probably a long list that hasn’t been disclosed yet. And we know that Pettitte and Segui are going to testify for the government. I think even Pettitte’s wife will testify.

        Let me guess, you are a Yankees fan. Mostly it seems to be Yankees fans who call McNamee a “rat.”

  2. BC - Apr 18, 2011 at 10:16 AM

    Clemens also shot his mouth off, where Bonds stayed evasive and said little. I think Clemens is going to have a more difficult time, actually.

  3. cur68 - Apr 18, 2011 at 11:20 AM

    I think its a case where someone wants Clemens to suffer less than Bonds (or Bonds to suffer more; who can tell?) so they’re trying to spin it that way. Seems to be the case at any rate reading that linked article. My take is that Clemens is going to get just reamed if they pursue him as vigorously as Bonds. This to me is the real question; will the feds go after him as hard as they did Bonds? They sure seem to have a better case for it.

  4. Old Gator - Apr 18, 2011 at 11:21 AM

    Why is it that we’re not allowed to lie to Congress, but…well, you know the rest of this question, right?

    • BC - Apr 18, 2011 at 11:24 AM

      Congress collectively is not smart enough to know if someone is lying.

    • jlhc5530 - Apr 18, 2011 at 1:44 PM

      Depends on the level of brandishment with which your forehead gleams, sir. The more days until your statement is burnished with a “not intended to be a factual statement”, the better lit the exit sign.

    • bigdicktater - Apr 18, 2011 at 8:01 PM

      How could anybody (except Congressmen) give this a ‘thumbs-down’??

  5. chrisny3 - Apr 18, 2011 at 4:17 PM

    I think the government is going to have a much easier time in this case than they did with Bonds, and it’s not going to take 4 days of jury deliberations to get a verdict. Not just because of McNamee either. For one thing, Clemens has a fool for a lawyer whereas Bonds’ attorneys were very competent. Second, I think the jury pool was predisposed to favoring Bonds because of his long career in that city. But the pool in Washington isn’t going to be nearly as friendly to Clemens and are less likely to be baseball fans. Hardin shouldn’t count on getting sympathetic or starstruck jurors.

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