To read the blizzard of commentary on Roger Clemens’s indictment, you wonder why the government is even bothering to bring the ex-pitcher to trial. Clemens’s guilt has already been decided in the sports media.
For instance, Shaun Powell on ESPNNewYork.com, who writes as if a verdict of guilty is a done deal: “It was arrogance that doomed Clemens, nothing more or less, and exposed him as a fraud.”
Or Rob Becker of Fox Sports: “I predict that Roger Clemens will spend more than a year of his life in a federal prison.”
Well, I predict that a great many people predicting what’s going to happen in the Clemens trial would do well to have a backup story prepared as to how they got it all wrong, because unless federal prosecutors have a wealth of new evidence that no one knows anything about, their case against Clemens — on the evidence that is known now — appears to be a lot of smoke and mirrors.
Many of the points contained in the six-count indictment wouldn’t get past Judge Judy. For instance, in the first count of obstruction of justice there are “two separate denials” that Clemens had been injected with vitamin B-12 by his former trainer McNamee. No one cares about vitamin B-12 injections; it’s not illegal, and who said what about it falls under the heading of who remembers or disremembers whatever.
Another statement in the first count mentions that Clemens said he was “not in [Jose Canseco’s] house on or about June 9, 1998.” So what? Canseco, who has accused everyone who played between Mickey Mantle and Stephen Strasburg of juicing, claims he has “no knowledge” of Clemens’s use of performance enhancing drugs.
So what difference does it make what day Clemens or Canseco recall that Clemens was at Canseco’s house in 1998?
And so on. One of the key pieces of “new” evidence that is supposed to doom Clemens is Andy Pettitte’s supposed recollection of Clemens telling him (“in or around 1999,” as it says in the indictment) of the use of human-growth hormones. But we’ve already read the text of Pettitte’s testimony, and it was so vague and confusing that the Congressional committee decided not to use it to call Pettitte as a witness during the hearings in February 2008.
So what, then, is the hard new evidence that prosecutors have to make their case against Clemens?
In June, former major leaguer David Segui appeared before the federal grand jury investigating Clemens for perjury and testified for about 90 minutes. Segui, who did tell the Daily News that he didn’t know if Clemens had ever used performance-enhancing drugs, was supposedly questioned about his connection with McNamee and whether or not McNamee once told him that he had vials, needles, and blood-stained gauze that he had used on Clemens.
But we don’t know that Segui has confirmed that such conversations took place or whether such testimony would simply be regarded as hearsay. Segui declined comment to the press as he left the jury room.
Which brings us to the only piece of hard evidence — or at least the only hard evidence that we know about: those vials, needles and blood-stained gauze. Since they have been in the possession of federal investigators for only about two years, no one can prove how old they really are or whether, as Clemens’s attorney Rusty Hardin has claimed, McNamee manufactured the evidence to bolster his claims about Clemens’s alleged drug use in the Mitchell Report.
In other words, Hardin maintains that McNamee could have easily doctored said items to make himself useful to investigators and avoid prosecution himself for dealing illegal drugs.
Many, including ESPN’s superb legal analyst Roger Cossack, are assuming that the government must have some new evidence or it wouldn’t be risking so much in taking Clements to court. But if that’s true, there hasn’t been a whisper of any new evidence or witnesses against Clemens to come out of Houston, New York, or anywhere else.
If the government’s case is going to be based largely on used drug paraphernalia that could be anywhere from 12 to 17 years old, then it’s going to be a very hard sell to a jury whose members are bound to be a good deal more skeptical than the sports press seems to be.
Right now it very much appears as if the entire case boils down to exactly what it was two years ago: Roger Clemens’s word vs. Brian McNamee’s. And those making predictions about how much time Clemens will do in prison might do well to remember that of the two principal witnesses in the upcoming trial, one is a former drug dealer and one isn’t.