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Roger Clemens wants to call George Mitchell as a witness

Jun 30, 2011, 5:30 PM EDT

George Mitchell

There’s a lot about Roger Clemens’ legal strategy that I’ve never understood, so I shouldn’t be surprised when something new comes up that makes me want to scratch my head:

 Former Sen. George Mitchell says Roger Clemens may call him to testify at his upcoming trial on charges he lied about drug use … Mitchell’s attorney filed court documents Thursday disclosing that his client is a potential defense witness and asking permission to make objections during his testimony.

The Mitchell Report had a lot of problems, but over-inclusive is not something that anyone has accused it of being. Indeed, apart from Clemens, I can’t recall anyone who was named in it that has seriously objected to their inclusion.

The real problem with it was that it only went after the low-hanging fruit (i.e. players who used a couple of drug dealers like Radomski, BALCO and McNamee) and gave the false impression that there were only 89 players who used PEDs, and now that those bad apples had been identified, they could be properly vilified and life can go on as if nothing had ever happened.

So if I’m the prosecutor, and I have a very well-respected former United States senator on the stand, called by the defendant, I simply walk him through the following:

Prosecutor: Senator Mitchell: apart from Mr. Clemens’ objections, have you, since the release of your report, been notified that your investigative team mistakenly included a player who had not, in fact, used performance enhancing drugs?

Mitchell: No.

Prosecutor: Not a single player?

Mitchell: No.

Prosecutor: Thank you, Senator.

Nah, that doesn’t move the needle too much, but it certainly doesn’t help Clemens to have the fact that there are no other erroneously-named players in the report entered into evidence. And Mitchell’s presence there will give gravitas to the anti-Clemens side of the room.

Not too late, Roger: you can decide not to call him.  Might be a good move to let him go. If you want to go after the Mitchell Report, call an expert who can poke holes in its methodology and conclusions in a way that doesn’t allow its well-respected namesake to come in and make it sound more credible than it really was.

  1. clydeserra - Jun 30, 2011 at 5:38 PM

    Is hardin still the lawyer?

    • proudlycanadian - Jun 30, 2011 at 5:50 PM

      Old Rusty seems to be a bit (How else can I say it?) rusty when it comes to legal strategy.

  2. jeffa43 - Jun 30, 2011 at 6:17 PM

    Misremembered Sir…

  3. nudeman - Jun 30, 2011 at 6:37 PM

    I know how Clemens can win:

    Take every piece of legal advice Rusty Hardin provides and do the exact opposite.

    Dumbest – and dumbest LOOKING – “professional” of any sort I’ve ever seen.

    Rocket needs to get his affairs in order. He’s going to be “away” for awhile.

  4. goforthanddie - Jun 30, 2011 at 7:25 PM

    Clemens is pathetic.

  5. mplsjoe - Jun 30, 2011 at 8:20 PM

    Did Clemens deny to Mitchell that he used steroids? Or make other statements consistent with his testimony before Congress (the subject of the perjury accusation)? If so, he might want to call Mitchell to testify to his continued, first-person denial of using ‘roids and his other prior consistent statements. There probably would be some evidentiary issues with such testimony – aren’t Clemens’ prior statements hearsay (when offered by Clemens rather than by his party-opponent)? are they offered for their truth or just to show that he made them – but it might not be a bad idea to show the jury his consistency.

    • nudeman - Jun 30, 2011 at 9:29 PM

      I just don’t know what good it does to bring in someone who can attest to consistency of one’s position (e.g “lies”).

      Especially when they have syringes with your DNA on it, failed tests, and other circumstantial evidence. But with Rusty calling the shots, who knows what the hell they’re thinking.

      • mplsjoe - Jul 1, 2011 at 2:26 PM

        Consistency can be pretty important to a perjury defense. The easiest way to convict someone of perjury is to showt hat he or she has made statements inconsist with their sworn testiminy. If the defense can show that the defendant has made statements consistent with his sworn testimony, the jury might be more inclined to believe that the defendant at least didn’t intentionally lie.

  6. dirtyharry1971 - Jun 30, 2011 at 8:40 PM

    craig doesnt find it the least bit interesting how mitchell didnt discover that both ortiz and manny failed drug tests? hmmm

    • Craig Calcaterra - Jun 30, 2011 at 8:45 PM

      You have a reading comprehension problem don’t you. You must, because you couldn’t have possibly understood this post and missed the fact that my criticism of the Mitchell Report is that it was woefully under-inclusive. Which means that he missed many, many PED users. Specifically, any users who didn’t use Radomski, McNamee or BALCO.

      • dirtyharry1971 - Jun 30, 2011 at 8:56 PM

        I think you answered your question….think about it…

        There’s a lot about Roger Clemens’ legal strategy that I’ve never understood, so I shouldn’t be surprised when something new comes up that makes me want to scratch my head:

  7. nudeman - Jun 30, 2011 at 9:26 PM

    There is no doubt that the Mitchell Report missed more than a few. From that standpoint though, its credibility is actually enhanced. Better to miss a few than include a bunch of guys who were clean.

    Supposedly there are 104 names of juicers who failed the test. That’s the equivalent of just a shade over 4 full teams; which is in turn approx 14-15% of all players (math off the top of my head; sorry if I’m off).

    Based on everything we now know, there were DEFINITELY MORE THAN 14-15% of players juicing.

    One of the big surprises when the floodgates broke was just how many pitchers juiced. As far as hitters, it wasn’t just the guys hitting 60-70 HRs/year; it was guys hitting 25 who would have hit 10 without the juice (hello David Wright).

    I’d say the actual number, at its height, was well over 50%. Maybe even as high as 75%.

    • nudeman - Jun 30, 2011 at 9:37 PM

      I’d like to correct my post: David Wright was probably not a juicer, based on his consistently hitting 25+, even since testing kicked in hard. Sorry David. You’re cool.

      Now RYAN HOWARD … he’s another story. 58 HRs his first full year? Let me think … who else has done that?

      Uh … ummmm … nobody, that’s who.

      • raysfan1 - Jun 30, 2011 at 9:54 PM

        Baseless allegations help nothing.

      • nudeman - Jul 1, 2011 at 10:16 AM

        Why don’t you go watch some indoor baseball on astroturf? Sound like your style.

        This a blog, not national tv. Baseless allegations are occasionally what this blog is all about. We’re all just killing time here, blowing off steam, waiting until it’s time for a beer.

        So relax.

        And btw, I stand by my comment about Howard. Strange how his HR totals dropped when testing kicked in.

      • raysfan1 - Jul 1, 2011 at 12:43 PM

        Formal testing started in 2005, same year as the 58 HRs.

  8. anxovies - Jul 1, 2011 at 1:28 AM

    The real question, as you and other readers have pointed out, is why the Mitchell report left out so many. Maybe this is the defense strategy: everybody did it back then. Actually, I wonder about the motives of the prosecutor in this case. Although we have seen some perjury cases prosecuted against prominent persons, in general practice they are almost never prosecuted because it is so hard to prove and is usually inconsequential in trials. Rarely does somebody get off because of perjured testimony, a jury usually sees through it. Usually a prosecutor will use the charge as a tool to threaten somebody into cooperating. the recent spate of perjury charges against athletes is just grandstanding, and in Clemen’s case, by both the congress and the prosecutor. I give Clemens a 50/50 chance of beating the charges, if not a little better. And contrary to some statements here, Rusty Hardin is quite competent. He got Arthur Anderson’s conviction overturned in the Enron scandal, no mean feat.

    • florida727 - Jul 1, 2011 at 9:05 AM

      anxovies – Jul 1, 2011 at 1:28 AM
      The real question, as you and other readers have pointed out, is why the Mitchell report left out so many. Maybe this is the defense strategy: everybody did it back then.
      The only problem with this statement and/or the Mitchell Report’s inclusion or exclusion of who juiced v. who didn’t, is that Clemens isn’t on trial for using PEDs. He’s on trial for LYING about using them.

      As stupid as this sounds, I think back to Charlie (the idiot) Sheen saying that he used steroids in preparing for the movie Major League and that his “fastball” (in and of itself a joke) went from 78 to 85 mph. If true, and gee, what’s not to trust when it comes to Charlie Sheen, then it’s not a stretch to think hitters weren’t the only ones juicing… pitchers could benefit from it too.

      • nudeman - Jul 1, 2011 at 11:00 AM

        Pitchers definitely were juicers. The poster boy was Greg Gagne. Had outrageous numbers with the Dodgers. Until testing.

    • nudeman - Jul 1, 2011 at 10:29 AM

      Sorry, I disagree on Hardin. Might have pushed all the right buttons in Arthur Andersen’s Obstruction of Justice case, but the moves he’s made in this one have been right out of a textbook of what NOT to do in a high profile case. Either he’s incompetent or can’t control his client. Or both.

      You don’t let your (guilty) client hold a press conference, pound the table, act belligerently, then storm off like a petulant 6 year old

      You don’t go to DC with your client, do a PR tour, then testify VOLUNTARILY and LIE while doing so, only to have your client CRUSHED by Congressmen who don’t buy into your client’s BS just because he’s loud, obnoxious and bull headed.

      Here’s what a competent attorney would have done, DAY 1 with Clemens:
      “Roger, sit down, shut up, stay out of the public eye, no interviews, I do all the talking. Period. You’re in no legal jeopardy. This will blow over, and eventually you’ll have your chance to talk, maybe at your HOF induction”.

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