Where’s the case against Clemens?

Roger Clemens, in terms of greatness and longevity is not only the best pitcher I’ve ever seen, he has a strong case for having been the best ever. Barry Bonds is the all-time home run king, as a hitter can only be discussed with Babe Ruth and Ted Williams and as an all-around player, only with Ruth.

Bonds has clearly fallen from grace and his accomplishments have been tainted in everyone’s minds. Now, Clemens faces a similar fate.

But for the life of me, I don’t understand why.

Roger Clemens swearing in

I’m not going to contend that Clemens is telling the truth and never took HGH or steroids. I have no idea whether he did or didn’t. But that’s really the point—I have no idea. And I can’t see how anyone outside of Clemens, Brian McNamee and anyone who might have actually seen McNamee inject Clemens with something they knew beyond a doubt was a Performance Enhancing Drug (PED) can claim to either.

I’m not surprised that most fans have already convicted Clemens. He’s an unappealing figure, the whole steroids era has seriously bruised baseball fans, and the media have spent over a decade now whipping up a self-righteous frenzy over the issue to such an extent that any accusation of use is immediately treated as conclusive proof that the player used.

What I do find so puzzling, though, is that not only does the government seem to think they have a strong case for perjury against Clemens, the legal experts who are weighing in on the issue are giving Clemens only a tiny chance of beating the rap.

I’m not a lawyer, so I can only assume I’m missing something here, but whatever it is must be gargantuan and I wish one of these lawyers would explain what it is.

The Case Against Clemens

As far as I am aware, the case against Clemens comes down to three things: Brian McNamee’s testimony, Andy Pettitte’s testimony and McNamee’s stored syringes which he claims he used to inject Clemens with PEDs.

Let’s start with McNamee. Many have said that the Congressional Committee before which Clemens and McNamee testified found McNamee more believable than Clemens.

I watched that hearing. Someone really should explain to Clemens that he is a lousy public speaker (and I say this as someone who has, in part, made his living as a public speaker). McNamee, on the other hand, is a former police officer and has been thoroughly trained and, one assumes, has had some significant experience in testifying in legal proceedings.

It requires only the smallest crumb of critical thinking then to understand that of course McNamee’s going to appear more credible than Clemens. It’s a given, no matter which one of them is lying that, barring some clear inconsistency in their testimony, McNamee is going to come off better. This cannot reasonably be considered a factor. The fact that both Chuck Knoblauch and Andy Pettitte said McNamee told the truth about them also amounts to nothing: most people don’t lie about every single thing and their telling the truth about X tells us nothing about whether they’re telling the truth about Y. Again, this is all very basic logic.

Then there’s McNamee’s so-called “evidence.” This is the one piece the legal commentators have generally dismissed, though I think not forcefully enough.

McNamee supposedly kept these syringes in a soda can in his basement for years. That immediately invalidates them as their purity, cleanliness and veracity can’t be verified. But there’s more to it than that.

McNamee, before he ever mentioned the name “Roger Clemens” to investigators had already been caught red-handed distributing controlled substances illegally. Is it a stretch to think that any person in such a situation, fearing that names like Andy Pettitte and Chuck Knoblauch might not be big enough fish, might want to implicate an all-time great like Clemens? Again, I’m not saying he did so, but it’s an obvious possibility that undermines McNamee’s evidence as well as the credibility of his testimony.

In any case, that evidence is worthless. Frankly, I can’t see how McNamee’s testimony is worth any more, under the circumstances. Indeed, former Rep. Tom Davis, the leading Republican on that committee, made it clear that if it was only McNamee, even though they found him more credible than Clemens, they would not have pursued perjury charges. The key was Pettitte.

Now, I certainly understand that Pettitte is a very credible witness. But can we really convict a man of perjury just because someone who strikes us as credible says he’s lying? I sure hope not. And, as I understand it (again, I’m no lawyer, so if some legal expert wants to say different, I will certainly stand corrected), this is precisely the reason that perjury charges are not brought as often as one might think: because it’s hard to prove someone is knowingly lying when concrete evidence is needed, not just the word of someone you believe more than the accused.

And just what is Pettitte’s testimony that is so damning to Roger Clemens? In 2008, he testified that eight or nine years prior, Clemens told him that he had used HGH. Pettitte then said that in 2005, that prior conversation had come up again and Clemens said he had been referring to his wife. Pettitte, by this time five years removed from the event, may have felt that Clemens was updating his story now that the whole PED thing had grown so big.

But what if Clemens was indeed talking about his wife, a professional bodybuilder who has used HGH and admits to doing so? What if Pettitte really didn’t hear him correctly, never got clarification, and went home and told his wife “Roger used HGH, oh my God!”?

That strikes me as an entirely credible scenario. How many times have we gotten upset about something we thought our friend, spouse, parent said only to find out, after a long shouting match, that we had not heard or understood them correctly?

And the seeds for this going badly were planted very early on. Consider the very poor thinking reflected in the remarks of Henry Waxman (at least I believe it was Waxman, the web site does not specify who was speaking, but Waxman was deeply involved with this and is Chair of the committee) regarding whether Clemens may have been referring to his wife: “What they (Clemens and McNamee) do agree upon, however, is that these injections(of Clemens’ wife)  occurred in 2003. That makes it impossible that Mr. Clemens, when he spoke to Mr. Pettitte in 1999 or 2000, could have been referring to the injections of Mrs. Clemens.”

No, Mr. Waxman, it does not, because Clemens had not, according to Pettitte, told him where he or his wife had gotten the HGH. From Pettitte’s deposition as entered into the record: “In 1999 or 2000, I had a conversation with Roger Clemens in which Roger told me that he had taken human growth hormone. This conversation occurred at his gym in Memorial, Texas. He did not tell me where he got the HGH or from whom, but he did tell me that it helped the body recover.” (emphasis mine)

Waxman implies that Clemens is being dishonest or lying about what he said in 1999, but all we can glean from Pettitte’s testimony is that McNamee was probably not the one who gave Mrs. Clemens thee HGH. In no way does it impugn Clemens’ version of events. Whether one believes Clemens or not, the most elementary logic shows that Waxman’s point is clueless and invalid.

And that’s the real problem here. There is no fact-based case against Clemens, yet everyone is acting as if there is. This is not an academic point. It matters.

It matters to baseball as yet another of its all-time greats is being tainted. More importantly, it matters to our system of justice and democracy. Perjury is a serious charge and carries with it stiff penalties including potentially significant jail time. We in the public can believe what we like, but a conviction for perjury should be proven beyond a reasonable doubt. From what has been demonstrated to the public, there is no significant proof at all.

Look, if Roger Clemens is lying, I hope the government can build a legitimate case against him. If he is guilty then he willfully sought out the opportunity to commit this crime. He was not subpoenaed, he came voluntarily and if he did it because he arrogantly thought he could lie to Congress to clear his name of steroid accusations, he deserves everything he might get.

But the evidence that we have is not at all convincing, even as a matter of personal opinion. I don’t know if Clemens is guilty or not. And neither does anyone but Clemens or McNamee. Unless a lot more evidence is unearthed, if Roger Clemens is convicted of perjury it will be a serious miscarriage of justice. And we’d all do well to calm down about this steroid hysteria and try to be a little fair.

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