CLEMENS MISTRIAL
Update: July 18, 2011
Following his testimony on Capitol Hill, we covered the statements of denial given by Roger Clemens regarding his steroid use (see older articles below). Rather than to begin our own efforts on this topic, we found better news resources in the form of 2 excellent journalists.
First, Lester Munson is a senior writer who has concentrated on controversial matters within the world of sports. Lester Munson has written several articles regarding steroid use in professional/amateur sports for ESPN.com. Munson’s success as a journalist is well noted while his investigative prowess is unmistakable and reflects his earlier days as an attorney. TJ Quinn wears two hats as he’s both currently an investigative reporter for ESPN while serving as an Adjunct Professor at the Columbia University Graduate School of Journalism. Quinn’s articles are quite diverse though most that we’ve recently come across pertain to drama found within Major League Baseball.
Prior to July 14th, both Munson and Quinn were “giddy with anticipation” over the pending quality and scale of case that federal prosecutors had in store. Though Brian McNamee was the “star witness” for the prosecution, they promised that his testimony would be confirmed by legally acceptable independent evidence. There was a fear that excessively boring proceedings would disinterest the jury; thereby, resulting in a pseudo – Barry Bonds outcome. Only the superior qualifications of Assistant U.S. Attorneys Daniel Butler and Steven Durham and their infallible array of evidence could compel jurors to find Roger Clemens guilty of perjury.
Some of the Brian McNamee’s allegations involved (1) multiple steroid injections given to Clemens, (2) consent given by Clemens and his wife that they would both receive injections from McNamee while knowing that the contents were steroids and not simple vitamins or anti-inflammatories, and (3) McNamee saving cotton swabs, syringes, and vials with Clemens’ DNA on them for fear that Clemens would not be truthful in the event that their activities were discovered. Clemens only admitted to receiving McNamee injections of Vitamin B-12 in addition to Lidocaine. The prosecution was fully prepared for this defense tactic by having all of McNamee’s evidence scientifically tested to affirm that there were (4) no traces of either Vitamin B-12 or Lidocaine but (5) only evidence of Clemens DNA found in both the syringes and salvaged cotton swabs. 
PARADIGM SHIFT:So, given the cost of the George Mitchell Investigation, FBI agents, local law enforcement, etc…you’re asking yourselves “…what happened?” Many journalists, pundits, and sports enthusiasts are all trying to discover what transpired within a short 2-day span of time to explain the abrupt termination of this court case.
It is obvious that Assistant U.S. Attorney – Steven Durham became overly confident in both the prosecution’s case, pool of damaging evidence, and series of career-making orations that he’d prepared. In an ESPN.com article, reporter – T.J. Quinn described how Steven Durham methodically retraced the Mitchell Investigation of steroid/HGH use in Major League Baseball. Durham distinguished between the evidence which proved Clemens’ use of steroids and the gravity of perjury of Congress. To underscore the seriousness of the latter offense, Charles Johnson – ret. House Parliamentarian was called as a witness. In doing so, he established the basis of the current perjury trial via Rule X(4).
Literally, this rule states: A witness under oath before a congressional committee who willfully gives false testimony is subject to prosecution for perjury under section 1621 of title 18 of the United States Code. The false statement must be “willfully” made before a “competent tribunal” and involve a “material matter.” For a legislative committee to be competent for perjury purposes a quorum must be present. No prosecution for perjury will lie for statements made only in the presence of committee staff unless the committee has deposition authority and has taken formal action to allow it.
This exception may’ve explained why Clemens made rounds to certain congressmen prior to the highly publicized hearings on Capitol Hill. Perhaps, under the advice of his attorneys, Clemens attempted to lie to the very legislators that he visited but avoid the very same questions that were bound to be raised before the quorum.
The Clemens miscalculation was offset by the level of arrogance in Assistant U.S. Attorney – Steven Durham who presented inadmissible evidence twice during the brief case. The first serious gaff made by prosecution attorneys occurred during Wednesday’s opening arguments when Durham referred to the HGH use of Andy Pettitte, Chuck Knoblauch, and Mike Stanton. Andy Pettitte denied steroid use during his first congressional appearance following the findings of the George Mitchell report. Recall in an earlier article on this website, Andy Pettitte was forced to reverse his earlier statement and admit to steroid use under the pressure of mounting and incriminating evidence.
As is commonly the case with ‘Prisoners Dilemma’, the Pettitte/Clemens/McGuire block broke down as self-preservation grew. Andy Pettitte soon cooperated with committee investigators and miraculously recalled a conversation whereby Clemens confidentially admitted to HGH use. Allegedly, Pettitte then shared this conversation, later that day, with his wife Laura Pettitte who subsequently completed an affidavit which was then provided to the investigative committee.
Presiding Judge Reggie Walton had already deemed this testimony to be hearsay, indirect in nature, and inadmissible throughout the duration of the trial. In fact, Judge Walton is a staunch opponent of hearsay and has gone against the grain in other cases based upon the presence of hearsay. Even in 2009, Reuters reported how Walton determined that hearsay was cornerstone of evidence for the Department of Justice regarding Guantanamo detaines’ habeas petitions before him-Walton. Walton wrote (verbatim), “…even the most widespread rumors are often inaccurate in part if not in whole. The court’s only point is that otherwise unreliable hearsay cannot be deemed reliable because there is other unreliable hearsay to the same effect.”
The prosecution attorney Durham was scolded during opening arguments and the jury was instructed to disregard the objectionable part of Durham’s opening statement. On the second day of trial, Durham played a recorded video as evidence before the jury that expanded upon the verbal exchange that supposedly took place between the Pettittes. The video excerpt was of a session of the House Oversight and Government Reform Committee involving Representative Elijah Cummings who was observed referring to the Andy-to-Laura Pettittee conversation regarding Roger Clemens’ admission of steroid use. With haste, Judge Walton froze the recording, called both legal sides to the bench, dismissed the jury, and finally, called for a mistrial at the request of defense attorney Hardin. Officially, Judge Walton explained that the hearsay evidence could predispose the jury to find Clemens guilty by association and guilty by 3rd party evidence.
Just as Clemens’ capitol hill antics did NOT serve him well during his testimony before committee, the silly behavior of 1 – U.S. Assistant Attorney proved to be embarrassingly fatal during the beginning of this expensive and high-profile endeavor. Following explicit judicial instructions not to make available a particular piece of evidence, it is baffling to explain the logic that would prompt Durham to tempt fate by introducing this evidence by indirect means of Rep. Elijah Cummings! Perhaps, Durham’s counter-argument would state, “…we’re following your directions and did not reveal this evidence. Rather, the availability of this evidence was coincidental and merely made available in the effort to provide context regarding the manner/setting wherein Clemens’ perjurious statements were made.” Not likely.
If the evidence was so voluminous to the extent of being potentially boring to the jury, why did the prosecution take such liberties with this particular judge. Judge Reggie Walton is a 62-year old judge who was appointed by George W. Bush to the United States District Court for the District of Columbia? Hon. Reggie Barnett Walton oddly shares the same name as Outfielder Reggie Walton who played for both the Seattle Mariners before joining the Pittsburgh Pirates. It would not be a stretch of the imagination to theorize that (during his life) Judge Walton may’ve developed some sense of connection/devotion to the sport of baseball given that there was a viable major league athlete who shared (a) identical names, (b) Pittsburgh location, and (c) age. In fact, Judge Walton may have emotional connections to ALL-THINGS PROFESSIONAL SPORTS as he attended highschool with Ken Griffey, Sr. Though we can not be certain of his motivation, the high correlation between Judge Walton and these well-known sports personalities must be noted. There may be some factor which serves as an explanation for Walton’s willingness to get Clemens off of the proverbial “hook”.
Undoubtedly, disappointment emits from ESPN.com articles written by both Lester Munson and T.J. Quinn following the mistrial. Clemens’ defense team wishes to be given until July 29th to file any motions associated with a retrial while the prosecution can respond by August 2nd. The issue of retrial involves the notion of double jeopardy whereby the same defendant is tried more than once for the same offense. This is not permissible according to the 5th amendment of the United States Constitution and the Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal and or conviction as well as multiple punishments for the same offense.
See U.S. v. Halper, 490 U.S. 435, 440 (1989)
Most experts believe that the risk of Double Jeopardy does NOT apply here and the United States can salvage its case by seeking separate punishments in multiple criminal prosecution. To do so, there must be at least one unique element/fact/transaction to the offense that was not previously presented. There’s hope left for ESPN journalists T.J. Quinn and Lester Munson. For more of their stories, visit www.espn.go.com
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