Jul
14

Dismiss The Case Against Roger Clemens

Does anyone really care whether major league baseball players use steroids? Isn’t that sort of like carping about breast implants at a strip club? Professional sports, like pole-dancing, is entertainment. We expect a little extra effort for the sake of our admission fee.

The mistrial declared today in the trial of Roger Clemens, who  allegedly lied about steroid use, is welcome news. After two days of testimony, federal prosecutors disobeyed a federal court order limiting the evidence it could produce before a jury.  United Stated District Court Judge Reggie Walton had no choice but to end the trial. 

This was not an innocent mistake by prosecutors too busy to get it right. The judge ruled before trial that a videotape of Laura Pettitte, the wife of ace-pitcher Andy Pettitte, could not be played before the jury unless without permission of the court.  In the video, Laura contends that Andy told her that Roger talked about using steroids. So what did the legal geniuses prosecuting the case against Clemens do? They played the videotape. Double hearsay anyone? Confrontation clause? What minor league law-firm were these prosecutors called up from?

Prosecutors contended this was a case that must be pursued because lying to federal investigators cannot be tolerated. They wanted to make an example of Clemens, a seven-time Cy Young Award winner, and veteran of the Red Sox, Blue Jays, Yankees and Astros. Clemens was charged with perjury, making false statements and obstructive Congress for denying steroid use at various times.

Obstructing Congress? That band of half-wits that can’t balance a budget and has the nation dangling at the edge of default. Lying to federal investigators? C’mon, federal agents are trained to use deception to get what they want. When is the last time a federal agent was disciplined for lying? Oh, wait, federal agents are almost always immune from suit.

Professional sports are to the United States what bread and circuses were to the Roman Empire: a way to distract a people with good times for a spell while trouble gathers all around. This prosecution of Clemens makes about as much sense as crucifying a Roman baker for not putting enough yeast in the bread used to distract the citizens of Rome. It’s a sick and twisted side show, a means of fiddling while the nation burns. 

Assistant United States Attorney Steven Durham was tight-lipped when he limped out of the court house today. During his opening statement, he draped himself in the flag: "Walk outside on Constitution Avenue and look to your left and you'll see a magnificent view of the Capitol building of the United States,” he told jurors. We must tell the truth there. 

When next Durham walks into his bathroom, I hope he looks in the mirror. What he will see is a nitwit who cannot follow a simple order of the court. This was not a question of a witness blurting out prohibited testimony. This is a case in which the prosecution played a videotape it had previously been ordered to edit. What penalty will the Government pay for this incompetence?

Normally, mistrials do not result in a bar to subsequent prosecution on double jeopardy grounds.  However, the court can find that this was deliberate misconduct justifying a bar of prosecution. If it was not deliberate, then it certainly was stupid. Will the Government be ordered to pay Clemens’ legal fees going forward? Who holds Uncle Sam accountable for waste?

The parties will return to court on September 2 for the government to announce its intentions. In this instance, misconduct by the government deprived Clemens of a fair trial. The judge ought to dismiss the action. But he won’t. We tolerate incompetence and lying by government officials. It’s the American way.

Comments (3)
Posted on July 16, 2011 at 4:43 pm by william doriss
% of Success
Bravo, Portia. Truer words never spoken. Nothing stops the state from breaking the "law" in order to acquire convictions against those it deems to have broken some silly law or laws. Meanwhile, the big fish get away "Scotfree." It's totally absurd, ridiculous. The public has no clue, least of all Dr. Petit.

Posted on July 16, 2011 at 7:08 am by portia
Dismiss the Clemens case
I firmly believe prosecutors couldn't secure most cases without deception. Can anyone truly swallow their high %s of success when they don't appear all that bright? They lie, and aggressively coach their "witnesses" to lie. Unfortunately, I also believe dirty judges and needy attys make deals behind closed doors to assist in their naughty games. If lying/perjury was indeed wrong, most of them would/should be behind bars. "Truth" is a myth in the judicial system...one huge reason it stinks.

Posted on July 15, 2011 at 11:36 am by Phil M.
Dismiss the case against Clemens
I do agree that the Clemens casem itself, is on the edge of if not over the edge of the more rediculous and meaningless prosecutions. I am also, however, at a loss as to how we separate the more serious cases of perjury i.e. those that do need to be prosecuted from those that are in the same category as the Clemens case. Do we trust the prosecutors themselves to make that decision or who does?
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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