Clemens Photo Defense Fails With Doctors Who Know Steroid Abuse
Roger Clemens attorney Rusty Hardin displayed four photos to the jury during the former All-Star baseball player’s perjury trial, each showing him pitching for a different team over 24 years.
They were evidence Clemens didn’t get bigger during his time in Major League Baseball, Hardin said, suggesting they help prove his client never took performance-enhancing drugs.
That’s not the way it works, said Gary Wadler, a former chair of the World Anti-Doping Agency’s prohibited list committee. While performance-enhancing drugs can build lean body mass and strength, photo evidence is meaningless in determining whether someone was using them, Wadler said by telephone.
“You can’t look at someone and say ‘Aha! They are on steroids,’” said Wadler, director of concierge medicine at North Shore LIJ Health System in Manhasset, New York. “A picture tells you nothing at all. Hitting a cycle (of use), coming off, those are all factors in how someone appears.”
Hardin, 70, displayed the photos to the jury during his opening statement April 24. They included images of Clemens while he was playing for the Boston Red Sox, Toronto Blue Jays, New York Yankees and Houston Astros.
“These pictures show this man’s body, other than the aging process, doesn’t outwardly change,” Hardin said.
J.P. Hyatt, associate professor at Georgetown University’s Department of Human Science, who researches skeletal muscle plasticity, muscle growth and loss, said photos taken over years would be much more likely to show the natural aging process than any changes produced by performance-enhancing drugs.
“You really have to look in a concentrated period of time” to make Hardin’s point, Hyatt said. “If you see these changes in a month or six weeks, when they go from skinny guy to massive dude, you might question what’s going on. Over the course of years, though, some of this happens naturally.”
Yesterday, U.S. District Judge Reggie Walton said that if Hardin wants to talk about changes in a person's size due to steroid use, he would need to call expert witnesses. The issue came up during questioning of defense witness Phil Garner, a former player who managed the Astros when Clemens played for them.
Legal experts are divided on how the jury in U.S. District Court in Washington will interpret the photos.
The argument that Clemens never got physically larger, and therefore he didn’t take the drugs, is a derivative of the O.J. Simpson defense that since a glove found at the murder scene didn’t fit Simpson, he must be innocent, said Philip Anthony, chief executive officer of DecisionQuest, a juror consulting firm in Los Angeles, by telephone.
“I think it’s a dangerous strategy,” Anthony said, pointing to the possibility that showing the photos in isolation without complete context might lead jurors to wonder about the body size of other players who used performance enhancers. “It’s fraught with danger because the jury may perceive that defense as an attempt to get out on a loophole.”
Bernie Grimm, a criminal defense lawyer at Cozen O’Connor in Washington, said he likes the move. He said jurors respond more to visual evidence than spoken testimony. If Clemens was his client and the judge allowed it, he’d go a step further and have the ballplayer strip down to a bathing suit for the jury.
“Here’s my guy, you examine him and you decide,” would be the defense then, he said in a telephone interview.
Clemens is charged with lying to Congress about using anabolic steroids, which are tied to acne, breast enlargement and thinning hair; as well as human growth hormone, which doesn’t in and of itself affect muscle size, Hyatt said.
Wadler said performance-enhancing drugs can speed recovery times and increase bulk, strength and aggression.
St. Louis Cardinals hitting coach Mark McGwire, an admitted steroid user who once held baseball’s single-season home run record, is noticeably smaller than he was in his playing days. Barry Bonds is appealing a conviction last year for obstructing justice in giving an evasive response to a federal grand jury in 2003 about whether he ever received a steroid injection from his trainer.
“Roger Clemens has always been a barrel-chested guy,” Hyatt said. “Look at the Red Sox in the late 1980s, he was always a large guy. You just don’t know, with age, did he pack on the pounds naturally or did he take something? Even within the scientific literature, it’s not clear cut as to what these things are doing to the muscle.”
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 ranks third in major-league history behind Nolan Ryan and Randy Johnson.
He went 18-4 with Houston and won the Cy Young Award as his league’s best pitcher the season he turned 42. The next year he led the league with a 1.87 ERA.
Clemens’s reputation already has been ruined by the taint of the accusations, according to the Dallas-based Marketing Arm, which compiles the Davie Brown Index that measures celebrity status in the U.S.
Clemens’s appeal to consumers ranks 2,409th, equivalent to that of former college basketball coach Bobby Knight, who once threw a chair in rage across a court during a game, and actor Mel Gibson, who had an anti-Semitic tirade during a 2006 drunk- driving arrest.
As for the level of trust consumers place in him, Clemens ranks 2,456th, similar to Pete Rose, baseball’s career hits leader who is banned from the sport for his connection to gambling.
“Regardless of what the verdict is, the damage has been done,” Darin David, an account director for the Marketing Arm, said in a telephone interview. “I can’t even imagine a scenario where we would recommend somebody like Clemens to one of our clients.”
He broke into the majors in 1984, had a 16-9 record during his first two seasons and then won the American League Cy Young at the age of 23 in 1986, when he went 24-4 with a 2.48 ERA and set a record by striking out 20 batters in a single game.
He was dominant before baseball’s so-called steroid era, logging a 1.93 ERA during the 1990 season for Boston, when he also had his third 20-win season. Steroids were banned by baseball in 1991, though the sport didn’t implement leaguewide testing for performance-enhancing drugs until 2003.
In his final four seasons in Boston, from 1993-96, Clemens went 40-39, twice posting an ERA over 4.00. The next two years, playing for the Blue Jays, he led the American League in both wins, going 41-13, and ERA.
For now, Clemens’s defense team is hoping his physical image helps convince the jury of his innocence, and that would be a good first step toward rehabilitating his public image.
“It reaches people,” said Marcellus McRae, a former federal prosecutor now at Gibson, Dunn & Crutcher LLP in Los Angeles. “If a guy is using steroids wouldn’t you expect to see something? It’s not about perfection, it’s about reasonable doubt.”
The case is U.S. v. Clemens, 1:10-cr-00223, U.S. District Court, District of Columbia (Washington).
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