Roger Clemens leaves the Courtroom after the Mistrial- Photo Jonathan Ernst/REUTERS
First it was the lengthy and painful investigation and trial of Barry Bonds where Federal Prosecutors came up short on their primary charges. Today it was the rapid mistrial called by Judge Reggie Walton as the prosecutors opened their case against Roger Clemens on the first day of Clemens trial. To me they looked like the prosecutors thatAlanShore(James Spader) made fools of in the television series Boston Legal. This was supposed to be a “slam dunk” for the government and instead it was a debacle.
Assistant US Attorney Steven Dunham opens his case -Dana Verkouteren / Associated Press
Today lead prosecutor and assistant U.S. attorney Steven Dunham went against the Judge Walton’s ruling by introducing evidence of former Clemens team mate and friend Andy Petitte’s wife that Petit had told her that Clemens had admitted using HGH. Walton had already deemed the video admissible in rebuttal. Instead Dunham introduced it invoking Walton’s ire and lead defense attorney Rusty Hardin asked for a mistrial.
Rusty Hardin argues for the Defense-Dana Verkouteren / Associated Press
Walton granted the mistrial even though prosecutors argued that the judge could simply instruct the jury to disregard the evidence. Judge Walton remarked “I don’t see how I un-ring the bell,” in that they could not know the effect of the evidence in jury deliberations. Walton noted that “Government counsel should have been more cautious,” noting the cost to taxpayers already incurred and that “I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence.” A direct comment that the prosecution’s case hinged on the testimony of and evidence supplied by former Clemens trainer Brian McNamee.
The government considered Pettitte’s testimony essential because he is viewed as “critical witness” because of his honesty and good reputation. This was even more important after Wednesday’s opening arguments where Hardin managed to turn the trial into one of the reliability of the prosecution and its key witness, McNamee.
That happened after Dunham on Wednesday morning showed a capped needle, a syringe and three cotton balls which the prosecution said contained steroid residue and Clemens’ DNA. It seemed to be a strong start, but then Dunham was warned about the testimony of Petitte’s wife. Then he elected to reenact Clemens’ Congressional testimony using an FBI agent and a former Congressional staffer leading a columnist to write “by mid-afternoon the jury had to despise Dunham.”
Hardin on the other hand held the jury in his hand weaving a trail of government investigators canvassing the country to find evidence with which to convict Clemens and only having McNamee’s testimony with which to attempt to send Clemens to prison. Hardin put the prosecutors and McNamee on trial showing a map of 72 locations across the country where the government went to prepare 229 investigative reports. Hardin pushed the prosecution hard and gave the jury a lot to think about regarding the evidence and the reliability of their chief witness. I think that this is most likely why Dunham introduced the Pettitte video most likely hoping to make an impact on the jury while having Walton simply let them off with a warning.
The play didn’t work. It was like a pitcher having been warned for throwing at a batter doing it a second time and getting tossed from the game. However in this case with wasn’t just the pitcher tossed it was the end of the game.
Judge Walton: “I don’t like making orders and lawyers not abiding by them. This clearly runs afoul of my pre-trial rulings.” AP Photo
Judge Walton has scheduled a new hearing for September 2nd to determine if there will even be a second trial. Given Walton’s statements today one has to seriously believe that he will not order a new trial. A gag order imposed by Walton is still in force and it is believed that Walton considers that a case of double jeopardy exists and that Clemens may be immune from further prosecution. If there is a second trial it probably will not take place until 2012.
In the end it is another case of over eager government investigators and prosecutors spending millions of taxpayer dollars to target high profile athletes. The fact is that for baseball the Steroid Era is over. It is likely that hundreds of players took varieties of performance enhancing drugs. The evidence of this is the marked decline in home runs and run production as well as injuries to older players that were less frequent than during the era.
As for those implicated as users they will be judged by the fans, their fellow players and the sportswriters who vote players into the Hall of Fame. Those innocent will be under as much scrutiny as those that have admitted or actually tested positive. Those that used whether they ever tested positive or not cheated, but cheating in sports is something that is not the job of government to police or Congress to investigate. Those that love the game of baseball will view records set during the era with suspicion because that is what baseball fans and writers do. We examine statistics and records; we live and die by them. But the fact is that baseball records are often products of their times. There were few home runs in the “dead ball era.” Many of the great home run hitters played in hitters parks and were surrounded by a strong supporting cast that forced pitchers to pitch to them. Many players that held records played in a shorter season, 154 vice the current 162. The National League doesn’t play the Designated Hitter which has extended the careers of many hitters whose defensive skills are declining to the point that they are a liability in the field and would have had to retire in previous times. From their inception until last year players used amphetamines to increase their alertness. That was legal and baseball did nothing about it until last year. In days past pitchers used the spitball, cut or sanded balls to get an edge.This was illegal but many did it and Hall of Famer Gaylord Perry admitted this even before being elected to the Hall of Fame.
What I have never thought right was Congress calling hearings and grilling ball players while the country was at war and suffering from a terrible economic downturn. That was a waste of time and taxpayer money. The one good thing is that it forced Baseball to get its act together regarding PED use, testing and enforcement. I am glad for that.
As far as the prosecutions they have been terrible a waste of taxpayer money and the results bear that out. It is time to end this mindless pursuit, let the players live their lives in retirement and let the fans, writers and their colleagues judge them.
Rusty Hardin and Clemens after the Trial Photo- Mark Wilson, Getty Images
As Clemens left the courtroom he was hounded by reporters and photographers, some even trying to get his autograph he had to push his way through like someone trying to escape a Zombie attack. As he did so an inebriated man waving a cane shouted “Leave the man alone! Leave the man alone!” Maybe it is time that we do, not only with Clemens, but Bonds and all the others that Federal investigators, notably Jeff Novitzky and prosecutors have investigated for years on our dime.
“Leave the man alone!” I second that.
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