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Roger Clemens wants the jury to know how bad a dude Brian McNamee is

May 1, 2012, 9:41 AM EDT

Brian McNamee

Roger Clemens’ lawyers filed a motion yesterday asking to be allowed to tell the jury just how bad a dude Clemens’ main accuser — Brian McNamee — really is.  It came in the form of an opposition to the government’s motion in limine, which is the government’s attempt to keep the jury from hearing about just how bad a dude McNamee is.  This is a really, really important motion. I’ll explain why in a second. But first, the legal setting:

The issue of whether a witnesses’ past bad acts can be mentioned comes up in tons of cases, especially criminal ones. At issue is always the same argument: one side says that just because the witness has been involved in some past shadiness doesn’t mean that what he’s saying isn’t true, so mentioning that shadiness is unfair and could unduly prejudice the jury. Underlying all of this is the notion that, hey, criminals associate with scumbags, and if every witness’ dirty laundry were aired, it would be really hard to get convictions. Let us put a bad guy on the stand so we can get a worse guy, OK?

The other side says, nope, that past shadiness goes to the witnesses’ credibility, and the jury can’t properly weigh his testimony unless they know who they’re dealing with. Sometimes the past acts are allowed into evidence (in the form of cross examination) sometimes not (the cross examiner is not allowed to say anything). It’s up to the judge.

But while this is a common fight, in the Roger Clemens case it is an extremely critical one. Indeed, the entire case likely turns on it.  Why? Because the government’s entire case is based on Brian McNamee, really, and if he is not believed by the jury — if they think he is not credible and/or generally sleazy — it’s virtually certain that Clemens will skate.

So what is it that the government doesn’t want the jury to know about Brian McNamee?

One of them we’ve talked about at length: McNamee was once questioned by police in Florida about a rape allegation. While there were never any charges filed, the police did note in their report that they believed he was lying to them.  That could be highly relevant in terms of McNamee’s credibility — if he’d lie to cops, why wouldn’t he lie to investigators, Congress or this jury? — but because the rape angle is so sensational, any information the jury could use about McNamee’s credibility could conceivably be outweighed by their visceral reaction to the context.  That will be a tough call for the judge.

But there are more.  In the motion, Clemens’ lawyers make reference to the following:

“… police misconduct at the NYPD, purported substance abuse and addiction, a conviction for driving while intoxicated, indebtedness and collection actions, tax fraud, prescription drug fraud and distribution, loan fraud, and breaking and entering.”

Some of that stuff is clearly out because it’s only possible use is to make McNamee look like a scumbag. Some of it, however, like fraud, could go to the man’s credibility and propensity to lie and/or concoct phony evidence such as syringes stored in soda cans.

The prosecution’s case in chief is currently underway and McNamee will soon take the stand, so the judge is going to have to decide all of this soon.  And given how important McNamee is as a witness, when he does, he may very well be deciding Roger Clemens’ legal fate.

(link via David Nieporent at BTF)

  1. proudlycanadian - May 1, 2012 at 9:45 AM

    So why did Clemens hire him if he was a scumbag? Two peas in a pod?

  2. rollinghighwayblues - May 1, 2012 at 9:47 AM

    That picture is classic.

  3. shawndc04 - May 1, 2012 at 9:53 AM

    The rape allegation won’t be a tough call for the judge. The guy was never charged or convicted. Just because a cop says he/she doesn’t believe someone doesn’t mean an allegation can be used against him in an unrelated court proceeding. Come on Craig.

    • brettj666 - May 1, 2012 at 11:44 AM

      It’s supposed to be innocent until proven guilty, unless the topic is WMD, then it’s guilty if we say you are.

  4. danindelray - May 1, 2012 at 9:56 AM

    I don’t think the supposed rape incident will come in but if it does, the Yankees won’t be too pleased. Its been reported that McNamee didn’t lie to protect himself, he was protecting certain players. Will he tell the full truth if forced to on the stand?

    And Craig, how about something about Rusty’s brilliant tactics yesterday, which have given the government the opportunity to re-argue whether or not Knoblauch and others should be allowed to testify -this will not help Clemens if they boost McNamee’s credibility by testifying that he told the truth about them.

  5. phukyouk - May 1, 2012 at 9:57 AM

    Craig – I would like to ask the obvious question here.
    Does the Jury know that these motions are being filed? what i mean is, if they know about it then they also know that the prosecution is trying to “hide” it from them due to the nature of what can be said. so wouldn’t they already be prejudice to his character without the actual information?

    I know that Jurys are ONLY supposed to go on what they hear in actual testimony but if someone is sitting on the stand and is asked a question, to which the judge does not allow do to “past acts” you would assume that the Jury can only see that as a bad thing, right?

  6. brockw82 - May 1, 2012 at 10:00 AM

    No, jury doesn’t know, then there would be no point to the motion – whole purpose is to keep it from them.

    • jwbiii - May 2, 2012 at 12:37 AM

      “Your honor, the prosecution’s key witness was accused of rape. He was never convicted, tried, or charged, but the investigators think he lied to them. Can we use this to attempt to discredit him?”
      “Objection!”
      “Sustained. Ladies and gentlemen of the jury, please disregard that.”

      That kinda doesn’t work.

  7. mybrunoblog - May 1, 2012 at 10:10 AM

    McNamee is a pimp. He could never have outfought Clemens but i did not know until this day that is was Clemens all along……

    Guilty…bye bye Roger. See you in 2 to 4.

  8. groundruledoublebourbon - May 1, 2012 at 10:24 AM

    Thanks for the CrimPro refresher course, Professor Calcaterra. Interesting stuff.

    • ltzep75 - May 1, 2012 at 1:04 PM

      More like an evidence refresher course. I say that only because all I could picture during the run-down was my former prof’s voice droning on and on about rule 608…

  9. garylanglais - May 1, 2012 at 10:35 AM

    If the Trial Judge rules in favor of the Government on this issue don’t be surprised to see Rusty Hardin move for an interlocutory appeal. This would freeze the proceedings and bring the Judge’s decision (on whether to allow/disallow evidence on McNamee’s past acts) to the Appeals Court.

    While such an appeal is usually prohibited until the trial has concluded, it may not be the case here. As Craig emphasized, the case practically hinges on this decision. This is typically when interlocutory appeals are allowed.

    Not saying Hardin’s request for an interlocutory appeal would be granted but he at least has a basis to make the request. Worst thing that happens is he further delays the case.

  10. tuftsb - May 1, 2012 at 10:47 AM

    I marvel at how Clemens had possibly the best year of his career in Houston (2005) after the hearings……..

  11. jimbo75025 - May 1, 2012 at 11:48 AM

    Neither Clemens or McNamee is an altar boy. If I was the prosecutor I would be very worried with having him as the star witness.

  12. bigharold - May 1, 2012 at 1:36 PM

    I kind of think Clemens did use PEDs. But, If a lying POS like McNamee is all they’ve got I can’t see how he’s convicted or even should be.

    If Brian McName is your best evidence it merely underscores that fact that you’ve got a pretty crappy case.

    • shawndc04 - May 1, 2012 at 2:05 PM

      I believe they have the syringes with Clemens’ DNA in them to corroborate his testimony. I also, umm, have a problem with Clemens letting McNamee inject his wife with HGH so she would have shapely or muscular abs.

      • bigharold - May 1, 2012 at 4:43 PM

        “I believe they have the syringes with Clemens’ DNA in them to corroborate his testimony.”

        It’s still coming from a lying POS. The fact that he supposedly held on to this stuff “in case” he needed it means if he’s not credible why wouldn’t I think he doctored the evidence, .. “in case” he needed it.

        Regardless, it doesn’t change the fact McNamee has a great big credibility issue and barring any evidence from a source other than McNamee the Feds still have a weak case.

  13. davidpom50 - May 1, 2012 at 1:54 PM

    Clemens lawyers make reference to “prescription drug fraud and distribution.” That’s gotta be about steroids, right? I’m not a lawyer, but I gotta think the prosecution will have a hard time keeping that out – it’s directly related to what’s going on. Or am I way off base?

  14. dexterismyhero - May 1, 2012 at 2:39 PM

    Clemens misremembers his member since he cannot find it anymore. Except with Mindy McCready.

    • xmatt0926x - May 1, 2012 at 4:27 PM

      That’s the woman I was trying to remember. As far as rape goes, didn’t it come out several years back that Clemens had a sexual relationship with Mindy McCready when she was 15 years old? I know the age of consent varies from state to state but that’s statutory rape in a lot of states.

  15. greymares - May 1, 2012 at 3:00 PM

    bigger scumbag Clemens or Bond thumbs up for Roger, thumbs down for Barry

  16. imaduffer - May 1, 2012 at 4:29 PM

    Do they do Hall of Fame inductions from prison?

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