June 19 (Bloomberg) -- Roger Clemens, the pitcher who won more than 350 games and struck out more than 4,600 batters in a 24-year Major League Baseball career, was found not guilty of lying to Congress about his use of performance-enhancing drugs.
A federal jury of eight women and four men in Washington yesterday acquitted Clemens of all six counts he faced. Over a nine-week trial, 46 witnesses testified, including former teammate Andy Pettitte, Clemens’s wife and his chief accuser and decade-long trainer, Brian McNamee.
“Mr. Clemens, you’re free to go,” U.S. District Judge Reggie Walton said yesterday following the verdict. Clemens, wiping away tears, hugged his wife and family.
The Justice Department’s defeat in the trial of Clemens follows its announcement last week that it wouldn’t retry former U.S. Senator John Edwards on campaign finance-related crimes, following a mistrial. Meanwhile, federal prosecutors in New York last week obtained a swift conviction of former Goldman Sachs Group Inc. Director Rajat Gupta on insider trading charges. The dual losses against a famous politician and sports figure are likely to be scrutinized for the lessons they hold for future prosecutions.
“Both juries were able to set aside their visceral feelings and look at the evidence and the evidence in both was lacking,” Marc Mukasey, a former federal prosecutor who is now in private practice at Bracewell & Giuliani LLP, said of the Edwards and Clemens verdicts. “You try to learn from your mistakes.”
The jury’s decision yesterday ends more than 4 1/2 years of proceedings against Clemens, who racked up the third-most strikeouts in major-league history for the New York Yankees, Boston Red Sox, Toronto Blue Jays and Houston Astros.
“It’s kind of uncomfortable for me to sit and hear people talk about you, good or bad,” Clemens said after court. “I put a lot of work into that career.”
“I want to thank everyone who came in to speak on my behalf and tell their story, who took time to get on a plane and come in,” Clemens said. He later signed a baseball for a fan outside the courthouse.
“This is a happy thing,” Janet Johnson, Clemens’s sister, said about the verdict.
Clemens thanked his legal team, whom he said “from day one listened to what I had to say.”
One of his lawyers, Rusty Hardin, said after court yesterday that “it’s a day of celebration. Justice won out.”
“Hopefully when a man says ‘I didn’t do it,’ let’s at least give him the benefit of the doubt,” Hardin said. “I’ve got nothing bad to say about anybody today.”
U.S. Attorney Ronald C. Machen Jr. thanked the jury for its service.
“We respect the judicial process and the jury’s verdict, Machen said in a statement. ‘‘The U.S. Attorney’s Office also wishes to thank the investigators and prosecutors, who pursued this case with tremendous dedication and professionalism after its referral to us from Congress.”
Clemens, 49, the winner of a record seven Cy Young Awards as the best pitcher in his league, has denied using steroids and human growth hormone since a Dec. 13, 2007, report by former U.S. Senator George Mitchell accused him of using the drugs in 1998, 2000 and 2001. Clemens’s first prosecution ended in a mistrial in July 2011 after government lawyers showed jurors evidence the judge had excluded.
“These cases are tough to prosecute,” P.J. Meitl, a criminal defense lawyer at Bryan Cave LLP in Washington, said in an interview before the verdict was announced. In a 2007 study, Meitl found just six defendants in the past 60 years who went to prison for charges related to lying to Congress.
“Here they had DNA evidence and a witness who said he did it and they still couldn’t get a conviction,” Meitl said. “Prosecutors are unlikely to go forward with these charges in the future unless Congress demands it.”
Clemens was indicted on one count of obstructing a congressional investigation into the use of performance-enhancing drugs by Major League Baseball players. He was also charged with three counts of making false statements to congressional investigators and two counts of perjury stemming from his public testimony to a House panel.
He faced as long as 21 months in prison had he been convicted of all the charges.
Steven Ross, general counsel to the House from 1983 until 1993, said an acquittal shouldn’t deter future prosecutions for lying to Congress.
“For the long-term, power-of-Congress role to investigate, the bottom line is that the rules requiring people testify truthfully under oath apply in congressional settings,” said Ross, who leads the congressional investigations practice at Akin Gump Strauss Hauer & Feld LLP in Washington.
Clemens, a right-hander, was known as “the Rocket” for his fastball and willingness to challenge opposing hitters he felt might be getting too close to the plate or otherwise taking too many liberties with what he considered his territory.
In one case, he picked up a piece of the shattered bat of Mike Piazza and hurled it at the New York Mets’ catcher running to first base during a 2000 World Series game between the New York teams. In a regular season game that July, Clemens had hit Piazza in the head with a pitch.
Known for his intense conditioning regimen -- running, weightlifting, even exercising his hand muscles in a bucket of dry rice on his off days -- Clemens pitched until he was 44 years old. He left the game after the 2007 season with a 354-184 record, a 3.12 earned run average and 4,672 strikeouts, a total that in major league history was exceeded only by Nolan Ryan and Randy Johnson.
The charges stemmed from statements the ex-pitcher made in February 2008 during a private interview with staff from the House Committee on Oversight and Government Reform, and later in a public hearing.
Under oath, Clemens denied ever using steroids or HGH, according to the indictment, matching public denials since Mitchell’s report alleged drug use on at least 16 occasions from 1998 to 2001.
After he testified, the committee’s Democratic and Republican leaders asked the Justice Department to investigate Clemens for perjury. He was indicted by a grand jury in August 2010.
In its closing argument, the government tried to overcome jurors’ possible reluctance to convict a famous athlete.
“We know that you do not want to find Roger Clemens guilty,” Assistant U.S. Attorney Courtney Saleski said. “He’s an American icon in baseball. Nobody wants to believe that he did this.”
The government’s case largely rested on whether jurors believed McNamee, the only eyewitness to the alleged drug use.
McNamee, who spent about 26 hours on the stand, said he gave the ballplayer injections of steroids during the 1998, 2000 and 2001 baseball seasons and HGH in 2000, while both men worked for the Blue Jays and the Yankees.
The drug use began when Clemens asked for help with a “booty” shot in June 1998 when the two returned to Toronto after a team series in Florida, he told jurors.
The evidence included a needle and cotton with Clemens’s DNA on them that tested positive for steroids, prosecutors said. The material was given to investigators by McNamee, who said he saved needles, gauze and vials from one of the injections in 2001.
He told jurors he kept some of the items in a Miller Lite beer can that he took from the recycling bin in Clemens’s apartment. He brought the materials home, combined them with other drugs Clemens told him to destroy and placed it all in a FedEx box, he testified.
McNamee’s story shifted from his first conversation with federal investigators in 2007 until he took the stand on May 14. Under cross-examination, he said the beer can also contained needles kept from injections he gave other ballplayers.
That admission allowed Clemens’s lawyers attack the credibility of the government’s only physical evidence.
The defense portrayed McNamee as a liar who manipulated the evidence he provided. During closing arguments, defense lawyers contended that when confronted by federal investigators about his connection to drug dealers, McNamee made up a story about Clemens. He kept adding to that story, they said.
“If you’re a really serious, serious pathological liar, you take a little bit of truth and wrap a bunch of stuff around it,” said Hardin, Clemens’s lawyer.
Hardin’s attack on McNamee included accusations of alcohol abuse and engaging in a fraudulent scheme to obtain diet pills. Hardin also got McNamee to admit he manipulated a dead body while he was a New York police officer.
McNamee’s estranged wife, Eileen, was also used by the defense to damage his credibility. The first-grade teacher contradicted key facts from McNamee’s testimony about her involvement in collecting and storing Clemens’s medical waste.
McNamee said he retained material from injecting Clemens because his wife nagged him about the amount of time he spent with the ballplayer and said he would be the one to take the fall “if something bad ever happens.”
He also said he showed his wife some of the materials from a steroid shot he gave Clemens the night he brought the materials home.
She told jurors none of that ever happened.
Walton allowed jurors to participate in the trial by submitting questions that he and the opposing lawyers vetted after each witness testified. Walton said in court it helped keep jurors engaged in a lengthy trial.
The questions provided clues about the leanings of each juror who submitted them.
“Why should we believe you when you have shown so many inconsistencies in your testimonies?” one juror sought to ask McNamee, according to a transcript of a bench conference. That question, which was rejected, was among 29 submitted for him.
The panel that decided the case included a cybersecurity expert at the U.S. Treasury Department, a public school teacher of deaf fourth graders, an administrative assistant at the Canadian Embassy, a former executive director of a psychologists’ association and a program analyst for the Nuclear Regulatory Commission, who said during jury selection that he has known people who used performance-enhancing drugs.
The only other witness tying Clemens to the use of HGH by personal testimony was Pettitte, former pitching teammate on the Yankees and Astros who is now playing for New York again after a one-season retirement.
Pettitte, 40, said Clemens talked to him about using HGH while the two were working out in either 1999 or 2000.
Clemens testified to Congress that he told Pettitte his wife, Debbie, used HGH. Under questioning by Michael Attanasio, another lawyer for Clemens, Pettitte agreed there was a 50 percent chance he misunderstood his teammate.
During closing arguments, Assistant U.S. Attorney Gilberto Guerrero told jurors that Pettitte’s long friendship with Clemens accounted for his inconsistent testimony.
“You think Andy Pettitte would put Roger Clemens in too much harm’s way?” Guerrero asked. “He was almost jumping at the opportunity on cross-examination to say 50-50.”
Lack of Certainty
Hardin told jurors that Pettitte’s lack of certainty “takes him out of the equation” for weighing Clemens’s guilt.
“Put Andy Pettitte over here, then what are you left with?” he said. “Brian McNamee.”
Debbie Clemens supported the possibility that the conversation with Pettitte had been about her by saying she received a shot of HGH from McNamee around 2000, three years earlier than McNamee placed the event.
One of the 13 allegedly false or misleading statements that made up the criminal charges involved Clemens’s testimony that he wasn’t present for his wife’s HGH shot.
Debbie Clemens backed him up on the witness stand.
With one eyewitness, the government called investigators, forensic analysts and former trainers to bolster McNamee’s credibility or rebut what Clemens told Congress.
Eugene Monahan, who was the Yankees’ athletic trainer from 1973 until last year, disputed Clemens’s account to Congress that syringes containing B12 were lined up in the locker room after games or that players received such injections through their clothing. Brian Cashman, the Yankees general manager, gave similar testimony.
Clemens’s defense team responded with former teammates and coaches who backed Clemens’s claims that injections such as B12 were readily available.
The defense also called into question the physical evidence linking Clemens to steroids, noting it was stored in a beer can for seven years.
“Garbage in, garbage out,” said Bruce Goldberger, a defense toxicology expert.
The defense highlighted government tests showing the DNA on the needle allegedly used to inject Clemens was so scanty it would match one of every 449 people.
In closing arguments, Hardin accused the government of “horrible, horrible overreach” in going after Clemens for defending himself against the accusations in the Mitchell report.
“It is not arrogant to say ‘I didn’t do it,’” Hardin said. “It is not arrogant to pay a price to be here. It is not arrogant to say ‘I worked for 24 years to be the best there was.’”
The case is U.S. v. Clemens, 1:10-cr-00223, U.S. District Court, District of Columbia (Washington).
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