Another Clemens trial is pointless and wasteful
WASHINGTON, D.C. – No one should be surprised that a judge ruled Friday that Roger Clemens must face another trial for lying to Congress. There was never legal precedent to prove that federal prosecutors intentionally tried to throw the first trial in hopes of getting a new one. The bigger question is, why does anyone want this to continue?
The first Clemens trial, all 1½ days of it, was an unsettling display of government ineptitude. Untold dollars were spent dispatching a fleet of FBI agents around the country to unearth evidence of what most baseball fans assume and have processed anyway: that Clemens used steroids in the latter half of his career. In the end, they produced a few needles and a syringe with steroid residue and the pitcher’s DNA.
And then the U.S. attorneys bungled their delivery, leading to a mistrial before they barely took a breath.
Maybe the needles and syringe along with some bloody gauze will prove to be damning evidence, but it was clear as the first trial began in July that the government was going to need more. The word of friend and teammate Andy Pettitte(notes), saying Clemens told him he used steroids, was not enough. As the jury settled in and watched the prosecution laboriously lay out its case against Clemens, it was clear that Pettitte, the government’s star witness, meant little to the people sitting in judgment of Clemens.
Perhaps it’s the government’s misfortune to have this case tried in a city that doesn’t care much about baseball. If Clemens was in federal court in Manhattan, Pettitte would be the easy bridge to conviction – a longtime New York Yankee considered trustworthy compared to the explosive and elusive Clemens. But as jurors were picked in the last trial, it became clear that few knew anything about baseball. Pettitte was another player to them, a face from television highlights to the few who bothered to watch them. Living in the District of Columbia, however, the jurors undoubtedly had strong views on government waste and could recognize a financial boondoggle when they saw one.
Spending millions to eventually have a steroid peddler hand over some 10-year-old needles combined with the testimony of Andy Pettitte seemed like a waste, indeed.
A new jury likely isn’t going to be much better. Washington is a small city and its pool of jurors from the first Clemens trial is probably representative of the next group from which to pick. Maybe the prosecution will get lucky and find a few true baseball fans, but the greater probability is that the next jurors won’t like baseball and will be mistrustful of government. That’s a condition of the locale.
So what's the point? Is the cost of millions more to throw together another trial with hours and hours more preparation justified in proving Clemens lied when he pointed his finger in Congress and declared that he never took steroids? Does anyone care anymore? It almost seems as if the window for a Clemens trial was open this summer and by botching the case, the prosecution ruined the best shot it had.
No one truly knows why prosecutors allowed the jury to hear a tape of Congressman Elijah Cummings reading an affidavit from Pettitte’s wife, Laura, saying her husband told her Clemens told him he used steroids. They were ordered by Judge Reggie Walton to keep Pettitte’s wife out of the trial, that anything she said was circumstantial. She had not been told this by Clemens himself. It was irrelevant to the case. Clemens’s attorneys argued that the government attorneys knew they had a jury that was unlikely to convict and wanted to start over. Steven Durham, the lead prosecutor, begged Walton to believe it was an honest mistake.
But whether the episode was intentional or not, the government still has an Andy Pettitte problem. Pettitte just isn’t the golden witness here he might be somewhere else. The government is going to have to find some way to convey his impeccable credibility. Given the restrictions of not being able to use Pettitte's wife or the testimony of other Yankee teammates who say they got steroids from Brian McNamee, proving a case against Clemens isn’t easy. There remains a good chance the government doesn’t have enough to convince a D.C. jury that Clemens lied to Congress even in a second trial.
“Enough money has been wasted, [Clemens] has endured enough,” one of his attorneys, Michael Attanasio, argued in an attempt to get Walton to deny the government a second trial. “They do not deserve another bite of the apple.”
More than three years have passed since the hearing at which Clemens is accused of lying. If Clemens appeals Walton’s ruling Friday, the case likely will become clogged in the notoriously slow Appeals Court. A second trial might not happen for another year or two. As it is, the new trial is scheduled for April 17, 2012, which is more than four years after the hearing. Few people care anymore. Everyone has moved on.
Whatever a new trial costs, it won’t be cheap. And while the money isn’t coming from some government slush fund, the image of all those millions going into proving Roger Clemens lied in a building where congressmen bend the truth every day will further irritate a public that believes this a fruitless pursuit. The government had its chance at the Clemens piñata, and missed in as humiliating a way as possible.
Attanasio had a point.
How many swings does the government get?
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