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.