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Monday, June 18, 2012


A federal jury in Washington, DC today found star baseball pitcher Roger Clemens not guilty of all charges in the federal criminal prosecution of him for perjury and related crimes arising from Congressional hearings on the use of performance-enhancing drugs in professional sports.  Clemens was charged with two counts of perjury, one count of obstruction of Congress, and three counts of making false statements in depositions, all stemming from sworn testimony before a Congressional committee in which the seven-time Cy Young Award winner denied having used PEDs during his major league baseball career.  Federal prosecutors asserted that the testimony was false.  After a trial that lasted for nearly nine weeks and involved scores of prosecutors and supporting federal agents, the jury deliberated for just over ten hours before finding Clemens not guilty on all counts.

As reported here previously, in an earlier trial on the same charges a year ago, the judge, Reggie B. Walton, declared a mistrial based on findings of prosecutorial misconduct.  However, Walton refused to dismiss the case completely so as to prevent Clemens from being re-prosecuted for the charges.  Thereafter the Justice Department did choose to prosecute Clemens again, that case culminating in today’s verdict.

The second trial, like the first, was based substantially on the testimony of two key witnesses:  Clemens’s former strength coach, Brian McNamee, who testified that he had injected Clemens with PEDs, and Clemens’s former Yankee teammate, Andy Pettitte, who testified that Clemens had admitted using PEDs to him.  Both witnesses were greatly undermined by Clemens’s lawyers, Rusty Hardin and Michael Attanasio.  Pettitte, who has not said he ever saw Clemens use any PEDs, finally acknowledged in questioning by Attanasio that there was a 50% possibility that he misunderstood even the alleged admission by Clemens.

Even more dramatically, McNamee, the only prosecution witness who claimed to have directly seen Clemens use any PEDs, was subjected to a withering fifteen-hour cross examination over three days by Hardin in the course of which McNamee acknowledged making false statements or at least exaggerations on various earlier occasions, and appeared to be fabricating assertions even during his testimony in this case.  Finally, the defense lawyers produced McNamee’s estranged wife as a witness, who flatly contradicted critical parts of the strength coach’s testimony.

Clemens faced the possibility of thirty years of imprisonment if convicted on all counts.  The duration of the deliberations was very short after such a lengthy trial.  Whatever the verdict on Clemens may be in the (non-criminal) court of public opinion, the quick verdict clearly indicates a complete failure—or defeat—of the Government’s case in the eyes of the jury.

That acquittal comes in the wake of the largely failed federal prosecution of baseball star Barry Bonds for obstruction of justice and three counts of perjury in connection with his testimony before a federal grand jury regarding PED use.  Bonds, who, like Clemens, faced lengthy imprisonment if convicted on all counts, was convicted of only one, the jury deadlocking and failing to reach a verdict on the remainder.  Bonds was sentenced to house arrest and probation.

 Among other defenses, the Clemens legal team placed substantial focus on Congress itself, arguing that with its subject hearings Congress had no real intention of eliminating PED use in professional sports, but instead were merely seeking publicity and political gain for members, so that any misstatements that might have been made would not have been material to any serious Congressional initiatives in any event.

Congressmen Henry Waxman and Tom Davis were the top Democrat and Republican members, respectively, of the Committee that conducted the hearings involving Clemens and then jointly referred Clemens to the Justice Department for prosecution.  After the complete acquittal of Clemens today, both men reportedly insisted on the validity of their committee’s referral of the matter to Justice.  Davis reportedly expressed doubts about the wisdom of the Justice Department in bringing the prosecution that Davis’s committee had referred to it.