144 replies to this topic

[86spike]

Rusty Hardin should use some of the money Roger is paying him to buy a better toupee.

Jesus.

[mauidano]

"Free at last, free at last. Thank God almighty, I'm free at last!" Well, sorta. Your life may return to some sense of normalcy but your baseball life won't. You may not have the pariah status of Pete Rose, but open arms on't await you. time to just kick it on the ranch in Texas.

[PhilPlantier]

Awesome job by the feds. Anyone got a tally of expenses on the Clemens and Bonds trials?

It's even sadder when you realize that a small fraction of one percent of applicants are able to get paid U.S. attorney positions. I can't tell if the Justice Department is simply wasting the best and brightest, or if the best and brightest really suck at their jobs.

[86spike]

Roger really wants to say "fuck you McNamee!"

[AimingForYoko]

Fantastic job by everyone involved. You go, government!

[MentalDisabldLst]

Time to get back to more pressing activities of the US government, like deporting children of illegal immigrants and prosecuting state-licensed growers of medical marijuana

[Rovin Romine]

Honestly, it seems like the AUSAs dragged out the case for far too long. Sometimes less is more. Given the hard evidence (DNA) and the number of crucial witnesses (MacNamee/Debbie) it seems like this could have been done in two weeks. While I believe that Clemens did PEDs, this was always a weak case for the Feds, given their one key witnesses credibility problems, but I think it was provable if the overall picture was painted clearly.

Once the case becomes drawn out though, things can get awfully foggy in the whole quasi-character "He worked so hard he didn't have a motive to do PEDs" v. "He wanted to win at any cost" arguments.

Honestly, had the evidence been presented succinctly and competently, does anyone have a reasonable doubt that:
1) Clemens testified he didn't do PEDs to Congress
2) He actually did do PEDs:
a) DNA/Drug results cocktail from a needle
b) somewhat shady guy who injected him
c) wife admits do doing same PEDs from same guy (but not Roger!)
d) teammates out him at some point (but then recant before jury)
e) unusual late physical peak/performance matching testimony
f) motivation due to a win at any cost mentality/hall of fame aspirations/contract money on the line/weird Toronto opt out

versus what - that he was a hard worker who had a miraculous rejuvenation late in his career and despite randomly associating with PED users and providers (including his wife and best friend) he remained clean but is now being randomly hounded by an evidence planting former employee who just randomly had some of Clemens DNA. . .?

Clearly the jury thought there was *something* to talk about, since it took them 10 hours to return a verdict.

Hardin earned his money on this one.

Edited by Rovin Romine, 18 June 2012 - 04:39 PM.

[Ed Hillel]

This was absolutely the correct verdict, but it doesn't take away from the fact that Clemens is also very likely a piece of shit liar who knowingly took steroids and lied under oath about it.

[Ed Hillel]

Soooooo... This means he makes the HoF, right?

No. Writers are allowed to look at all evidence, outside just the testimony of a heavily flawed individual, and the standard isn't beyond a reasonable doubt. Clemens very likely took steroids/HGH and I don't think you'll find enough writers to put aside the giant red flags to get him in. At least not until there's some sort of consensus on how to handle these guys, like letting them in on their last vote or something like that. For now, I can't see him getting in. Or even anywhere close to it.

Edited by Ed Hillel, 18 June 2012 - 05:09 PM.

[Average Reds]

As I stated upthread, I assumed that the case against Clemens was cooked the moment that Andy Pettitte cracked on cross examination and testified that he might have misunderstood what Roger told him about his use of HGH.

Pettitte was the pious, churchgoing truthteller who also happened to:

• Be Clemens' best friend on the Yankees
• Use the same trainer.
• Use HGH that he got from the same trainer.

In short, Andy Pettitte was the silver bullet for the prosecution. And once he equivocated on his level of certainty about what he heard Roger say, the jury had all the reasonable doubt they needed to give themselves permission to acquitt.

Edited by Average Reds, 18 June 2012 - 05:12 PM.

[Rovin Romine]

AR,

I think you're likely right - certainly it would have made for a much stronger case against Clemens if he'd stuck by his original testimony.

I'd have loved to actually see that portion of the testimony. You can do a lot with a witness on redirect who is conveniently waffling to help a former best friend, you can also, if you misplay it, totally reinforce the witness's new position. A lot also depends on how the defense attorney handled the cross.

[natpastime162]

It's even sadder when you realize that a small fraction of one percent of applicants are able to get paid U.S. attorney positions. I can't tell if the Justice Department is simply wasting the best and brightest, or if the best and brightest really suck at their jobs.

Getting hired by the Federal Government is a fucking chore.

[terrynever]

Clemens has not been invited back to Old-Timer's Day at Yankee Stadium since he retired. Not sure he ever will be. Boston hasn't exactly extended open arms to Roger. Toronto probably forgets he played for the Jays for two years. That leaves Houston as the only baseball home for Roger. New ownership there but I assume the Astros will embrace the home-state hero at some point.

[behindthepen]

I know people keep raising the "how much did this cost to not get Bonds and Clemens" question, but to me it was all worth it. There is no way without all this spectacle that MLB and MLBPA would have changed their stances on PED's. I know George Mitchell did a lot of the heavy lifting, but the government kept it alive long enough to get everyone to the table.

[Rovin Romine]

I foresee a Clemens-Armstrong-Sosa-Pettitte-Palmeiro good will tour - stopping in various TX cities.

[Average Reds]

Soooooo... This means he makes the HoF, right?

Not that the situations are in any way comparable, but it's worth mentioning that the Black Sox were acquitted at their trial. So a criminal acquittal does not give Clemens a free pass into the HoF.

I do think he'll eventually get in. But he was a shoe-in for the first ballot and I can't see that now.

[Myt1]

I know people keep raising the "how much did this cost to not get Bonds and Clemens" question, but to me it was all worth it. There is no way without all this spectacle that MLB and MLBPA would have changed their stances on PED's.

And getting them to change their stances was worth all that money, how exactly?

[wutang112878]

I will fully admit that I didnt follow this case that closely, and I dont have the legal knowledge to answer this question. But could any of our legal experts here help me understand or rank how factors got him the not guilty verdict? My thinking is, in order of importance it went something like this:

• The govt didnt have the solid, credible witnesses needed to get the conviction
• The govt put him on trial for charges, or too many charges, that they just couldnt get a conviction for
• They really screwed up the first case
• Hardin out-smarted them

Was there anything else?

[dcmissle]

Well it's good to see some cases are reaching a verdict. Today began week 7 of a trial I started on May 8. Scheduled to go to the jury the end of this month, so hopefully I'm home by July 4.

Miss you all.

Rusty Hardin is a good lawyer, but showed precious little judgment is allowing Clemens to dig his hole deeper. That asshat libel suit, for example.

Take care, enjoy the summer.

[RGREELEY33]

Clemens is a piece of shit liar who did steroids. He also belongs in the HofF.

[Rovin Romine]

I will fully admit that I didnt follow this case that closely, and I dont have the legal knowledge to answer this question. But could any of our legal experts here help me understand or rank how factors got him the not guilty verdict? My thinking is, in order of importance it went something like this:

• The govt didnt have the solid, credible witnesses needed to get the conviction
• The govt put him on trial for charges, or too many charges, that they just couldnt get a conviction for
• They really screwed up the first case
• Hardin out-smarted them

Was there anything else?

Well, the way to think about it is "What did the prosecution fail to do to convince the jury that RC was in fact guilty beyond a reasonable doubt?"

Quick Primer on general criminal law:
In criminal cases the accused is presumed innocent and the prosecution has the burden of proving that a crime was committed and the defendant was the person who committed the crime. Additionally, there are certain "elements" the prosecution must prove, depending on what crime is being charged (e.g., the prosecution must prove that someone is actually dead if the crime is murder).

The "standard" (or level or amount of proof required) is "beyond a reasonable doubt." This is, quite deliberately, pretty vague - the jury decides whether they have any reasonable doubts about the offered proof as it relates to the elements. If there is a *single* reasonable doubt as to one of the "elements" of the crime, then the jury is instructed they *must* return a verdict of "Not Guilty" because 1) the defendant is presumed innocent, and 2) the prosecution has failed to prove the charge they have brought. Thus a jury can be convinced the prosecution completely proved all of the case *except* for the one thing they have a reasonable doubt about. Or a jury can think it "kind of likely" that the accused committed the crime, but think that the quality of the prosecution's evidence just isn't strong enough to erase the slim chance/possibility that the defendant *didn't* commit the crime.

The only way the prosecution can prove the charge is by introducing "evidence" to the jury, in the form of sworn testimony and properly authenticated "objects," which might include photographs, recordings, test results, etc. The judge is there to make sure the evidence is germane to the case - so things like the prior mistrial should not be tendered to the jury for their consideration.

This means, theoretically, that RC (and attorneys) did not have to *do* anything at all, but that the prosecution somehow failed to erase any reasonable doubts the jury might have had. In practice, I am sure that RC's attorneys objected to potential evidence (testimony/objects) they thought were irrelevant to the case, or which violated a rule of evidence. They also exercised their right to "cross examine" witnesses that the prosecution called, meaning they asked them questions which ideally raised doubts in the jurors' minds. They presented evidence on their own to the jury by calling witnesses. Lastly, they summed up what the case looked like from their perspective in their closing arguments. Closing arguments are not evidence per se, but are designed to point out the implications of certain pieces of evidence, the conflicts (if any) in the evidence, and the lack of evidence as it relates to the elements of the case. (These three things, BTW, are what jurors traditionally find reasonable doubt in.)

Some likely reasonable doubts (Keeping in mind I didn't watch the trial!!!!)

The evidence:
The DNA might have been tainted/the results inaccurate.
The DNA might be real but was collected in some other way than what witnesses testified to.
Witnesses not being credible (biases, inconsistent prior statements, delays in coming forward with information, testifying to please prosecutors or avoid charges themselves). Obviously this would be the keystone of the defense - MN cannot be trusted.

The lack of evidence:
No admission from RC.
No hard paper trail proving drug purchases?
No corroborating testimony (meaning it's just MN's word against RCs)?
No showing that RC's career numbers could *only* be caused by PEDs.

Conflicts in the evidence:
Dunno - this is usually very trial specific.

Lastly, there's the human factor. We don't know how RC looked *to* the jury during those long weeks. We don't know if he smiled at the right moments, or if they found out he had a wife and kids, or if he looked regretful or embarrassed, or any other dozens of reasons the jury just might have decided not to convict no matter what the evidence was (juries can do this - it's called "pardon power"). We also don't know how the government attorneys or witnesses might have rubbed the jury the wrong way.

A case like this, with so many things that can go one way or another is what I tend to call a "soft" case. There's hard evidence on point that RC's blood was in a syringe and on a cotton ball and there was also some PEDs in/on them (I think?), but the reasons how and why and when it got there, plus the delays in coming forward with the evidence, plus the questionable character of the government's main witness makes things a lot foggier. That should be reasonable doubt right there. But I've seen juries convict on less if they're "sure in their bones" the accused "did it," and skilled prosecutors who make cases cleanly and don't get bogged down in sideshows can sometimes pull out a conviction. In these kinds of foggy cases, jurors sometime seize on one thing at one point in the trial and run with it. (In one memorable case, I had a defendant laugh and sneer at something one of the witnesses said on the stand. The fact that the witness was a teenage kid my guy had been accused of shooting, and the kid was testifying about just how the bullet in the abdomen had affected him medically, did not go over real well with the jury - you could tell we lost more than one of them right at that moment.)

In this case, if I were the prosecutor, I probably would have led off with MN. My very first question might have been "Did you inject this man with illegal drugs to help him cheat?" Boom. Risky, objectionable, but you get it all right out and have a chance to win minds early. Or maybe start by showing RCs freakish later success - except that runs the risk of painting him as a winner/niceguy. Yeah, in a case with suspect witnesses like this, I'd have started with the steamy underbelly and then shown how such can entice even the famous. I would not have started out with a history of the game, or drug use, or what exactly RC said to Congress (easy to prove).

In this kind of case, I suspect the "lawyering" (the ability to connect with the jury and tell a coherent and "real" story through the witnesses) played a large role. The fact that they went on so long suggests the signal was lost in the noise, probably noise of their own making.

Edited by Rovin Romine, 18 June 2012 - 07:55 PM.

[8 and 9 in Left]

Two quick thoughts reiterating points others have made:

1) The case was likely overtried. IMO, this is becoming more of a problem for prosecutors at every level.

2) The jurors were looking for any reason to acquit, and PettiTTe and the defense experts re the syringe handling gave it to them. BTW, did the defense experts argue that Clemens' DNA appeared because he drank the beer out of the cans that the needles were kept in? If they didn't posit that, then I fail to see how any amount of "mishandling" yielded Clemens' DNA.

[Brickowski]

Look at the case from the point of view of a juror, not as an attorney. McNamee is just as big a sleazebag as Clemens, and when McNamee's wife further undermined his credibility, that was the end of the prosecution's case. IMHO the chain of custody issues with the physical evidence were secondary.

Edited by Brickowski, 18 June 2012 - 08:18 PM.

[Rough Carrigan]

This was absolutely the correct verdict, but it doesn't take away from the fact that Clemens is also very likely a piece of shit liar who knowingly took steroids and lied under oath about it.

Exactly! This is my position as well.

Despite disliking him I actually found myself feeling happy for him today. Sociopathic scum like Lloyd Blankfein and Jamie Dimon casually perjure themselves in front of congress about how they've ruined the financial lives of millions of people but are never called to task for it. The guy in life's candy store who lied gets a multi-million dollar investigation. What immoral cowards.

[Rough Carrigan]

I know people keep raising the "how much did this cost to not get Bonds and Clemens" question, but to me it was all worth it. There is no way without all this spectacle that MLB and MLBPA would have changed their stances on PED's. I know George Mitchell did a lot of the heavy lifting, but the government kept it alive long enough to get everyone to the table.

I think you've got the time line on this wrong. They did "survey testing" of MLB players in 2003. After more than the agreed 5% threshold of players tested positive, testing began in 2004.

The Mitchell report was more like the owners running a victory lap over the players and was issued in December 2007.

[Pumpsie]

Exactly! This is my position as well.

Despite disliking him I actually found myself feeling happy for him today. Sociopathic scum like Lloyd Blankfein and Jamie Dimon casually perjure themselves in front of congress about how they've ruined the financial lives of millions of people but are never called to task for it. The guy in life's candy store who lied gets a multi-million dollar investigation. What immoral cowards.

Yeah, that was my response, too, and I can't stand Clemens. Our entire society is corrupt going to the very top...and you want to focus on this guy? Meh. Take a hike.

[mauidano]

Why do I feel like the Evil Empire won again?

[JimD]

Why do I feel like the Evil Empire won again?

They can have the dirty Roger Clemens and PettiTTe. The best part of this saga for the perspective of a Sox fan is the near certainty that Clemens wasn't doing any of this stuff prior to the miraculous rebirth of his career after arriving in Toronto in 1997.

[wutang112878]

The evidence:
The DNA might have been tainted/the results inaccurate.
The DNA might be real but was collected in some other way than what witnesses testified to.
Witnesses not being credible (biases, inconsistent prior statements, delays in coming forward with information, testifying to please prosecutors or avoid charges themselves). Obviously this would be the keystone of the defense - MN cannot be trusted.

The lack of evidence:
No admission from RC.
No hard paper trail proving drug purchases?
No corroborating testimony (meaning it's just MN's word against RCs)?
No showing that RC's career numbers could *only* be caused by PEDs.

Thanks for breaking this all down, very insightful!

So my follow-up question is, shouldnt the prosecutors sort of realized this before making charges? Specifically, checkout the actual evidence McNamee had, checkout his specific story, figure out if he could be a credible witness? That sort of seems like some diligence work that should be done before pressing specific charges to figure out what they felt confident they could convict him on right? Maybe thats a stupid question, because either the answer is yes they bleeped up, or no they are just bad lawyers. I just cant tell which it was.

In this kind of case, I suspect the "lawyering" (the ability to connect with the jury and tell a coherent and "real" story through the witnesses) played a large role. The fact that they went on so long suggests the signal was lost in the noise, probably noise of their own making.

This is a great point, considering the requirement to remove reasonable doubt, the more the defense could complicate matters must of helped. Foolishly, I thought all Hardins tactics were just motivated to delay.



Also, do you think the prosecutors screw-up of the first trial played any role? Obviously it shouldnt affect the new jury, but do you think it affected how the judge handled the case at all?

[Rovin Romine]

Thanks for breaking this all down, very insightful!

So my follow-up question is, shouldnt the prosecutors sort of realized this before making charges? Specifically, checkout the actual evidence McNamee had, checkout his specific story, figure out if he could be a credible witness? That sort of seems like some diligence work that should be done before pressing specific charges to figure out what they felt confident they could convict him on right? Maybe thats a stupid question, because either the answer is yes they bleeped up, or no they are just bad lawyers. I just cant tell which it was.

This is a great point, considering the requirement to remove reasonable doubt, the more the defense could complicate matters must of helped. Foolishly, I thought all Hardins tactics were just motivated to delay.

Also, do you think the prosecutors screw-up of the first trial played any role? Obviously it shouldnt affect the new jury, but do you think it affected how the judge handled the case at all?

You’re welcome. My baseball stat kung fu is weak, and my baseball ideas speculative, so it’s nice to chip in with something I feel that I can help with.

The prosecutors should have vetted their case before trial. I’m sure they did.

Usually, when someone suspects a crime, investigating authorities get involved first (Police, Fed. Agencies, Grand Juries). When enough potential evidence is accumulated to pass a minimum threshold, the prosecuting agency/authority formally files charges against a person. This can happen in a few different ways, but basically, it follows the same path. Prosecutors have a lot of discretion as to what charges are filed and against whom. This is both traditional and good policy – for example prosecutors should be free to not charge minor offenses, to not harshly charge less culpable individuals, to focus resources on the most culpable/dangerous persons, etc.

I have to say though, that if the standard for actually filing charges was “expected to be proven beyond a reasonable doubt in front of a jury” we’d FAR less criminal charges filed. Probably something like less than half of what we see now. The standard for filing is “probable cause,” which is in practice something like “a moderately cautious person believes that a crime has occurred if the evidence were true.” Clearly there was enough evidence to file charges against Clemens.

Once there are formal charges, the case heads towards resolution. Sometimes the charges are dropped as new potential evidence comes forward or if problems are found with the case. Sometimes the case resolves with a plea bargain. The vast majority of criminal cases resolve this way. Unless there’s a huge reason to put something in front of an actual jury, the prosecutors will usually make an offer to close the case to a lesser charge (saving time/money/uncertainty.) People decry this often, but it’s a fairly good system. Usually there are strengths and weaknesses in a case, so both sides benefit from plea bargaining. If an accused person wants a trial, nothing really stops them from having one. Many states have rules in place to make this happen in a relatively quick time. The weakness of the system is that if the crimes have harsh penalties (as so many of ours do) people will plea out very defendable cases because they fear the severe consequences of losing, even if the chance of losing is small. This, along with drug offenses, is likely why America is so “crime ridden,” if you look at statistics.

I am not sure if an offer was made and rejected in the Clemens case, or if the DOJ thought this case must be put in front of a jury.

In terms of actually initially charging Clemens, the DOJ may have felt it had no choice. Perhaps there was political pressure from offended Congressmen, or perhaps it felt that after Bonds, Clemens was the next best case to pursue, as opposed to Armstrong. A timeline of Balco/Bonds/Armstrong GJ/Clemens GJ/Clemens first trial, might be interesting.

You can think of all of the above as “strategy” – what broad path does law enforcement take in regards to PEDs, perjury, etc.?

You can think of the actual trial itself as “tactics” – once we have decided to go after Clemens, how do we resolve it? (Although you can argue tactics applies to who/when to charge.)

At the end of the day, there was a failure on one or both levels, because time was spent for little or nothing. It may have been, from the point of deterring this behavior, counterproductive, or it may have created a bit of “mmm, that’s to be avoided” thinking. Impossible to tell on that score.

On the “tactical” level of the trial, there are many things an attorney can do to win/lose a case. I didn’t watch this one so can’t really comment on the ins and outs. Sometimes though, there’s no huge failure on any attorney’s part, nor are they “bad lawyers.” Sometimes the case just exists in a “could go this way/could go that way” bubble, and all the pushing and shoving from the attorneys can’t move it out of that zone, even if one set is skilled and the other not.

For reasons many have chimed in on, it seems the prosecutors bored the jury by overtrying the case and ended up relying on very questionable witnesses. Coupled with the relatively non-salacious nature of the charges, well, it was probably enough to “lose” the case.

Additionally, all actual trials always have some degree of uncertainty. In my experience (these are off the cuff numbers based on somewhat aggressive litigation in state courts), there’s a good 50% of cases where something completely wacky happens that neither side foresaw, then maybe 15% of cases where the wackiness is crucial to the outcome. Overlapping this to a degree are maybe another 10% of cases where the jury returns a verdict that shocks everyone in the courtroom: prosecution, defense and judge. Sometimes at the close of the case, but before the jury has returned, the prosecutors and the defense attorneys have a moment where they compare notes and chat professionally, it’s often a moment of nervous relief; I had one case where the prosecutor (one of the few I respect) came up to me and said, half-jokingly, “Well, we all knew you were going to win, but did you have to make it hurt so much?” Of course, my client was found guilty twenty minutes later, and the case is currently on appeal (and looking good). On the other hand, I once won a case (burglary) with a video of the break in, the defendant’s fingerprints on scene, and a confession. No one was more surprised than I. So you never really know, when you’re vetting a case, how it will go, or what the jury will see that eludes the lawyers.

Perhaps the Pettitte testimony was the unexpected trial influencing moment of the case – I could certainly see it being so. Perhaps if it went the other way, if Pettitte broke down crying and said, “We all did it, I don’t know why he won’t admit it,” things would have skewed the other way. Not likely I’ll grant you, but it wouldn’t have been the weirdest thing I’ve seen.

Lastly, I don’t think the prior mistrial had any effect, unless the prosecution or defense tipped their hand to the extent the other side could prepare better, OR unless the judge was so angered by conduct that he ruled against one side or another (or, to say it another way, that in a matter/ruling totally within the judge’s discretion, one side or the other gained that molecule of credibility that swayed the judge to favor their point of view, and in so doing, gained an advantage by keeping a piece of evidence out or allowing one in.) I read there was some hanky panky with a video or something, so that might have been the case here. Apart from that kind of thing though, a mistrial causes no real penalty per se in a subsequent trial. Defense usually makes out better though, since the prosecution witnesses are forced to testify twice and thus might make mistakes from one iteration of their story to the second.

[Rovin Romine]

PS - thinking it over, maybe it's more like a 5% shocking verdict result. But the point is that no one can ever guarantee what will happen at trial. You can make educated guesses, and in situations where the guesser knows the judge, attorneys, witnesses, and the chance for deviation in expected testimony is very small, well, they can be very accurate educated guesses. But no one can ever guarantee an outcome, and the more "this way/that way" a case becomes, the less accurate the prediction.

That said (and it may sound weird in light of the above) Juries often just "get it right." And with the exception of certain very rare emotional push-button cases, I'm sure the jury system is the best system to arrive at good and fair outcomes.

[Worst Trade Evah]

I don't know -- I mean, who doesn't think Clemens was guilty? He did steroids and he lied about it, under oath. This jury seems about as dumb as the OJ jury.

[AimingForYoko]

Exactly! This is my position as well.

Despite disliking him I actually found myself feeling happy for him today. Sociopathic scum like Lloyd Blankfein and Jamie Dimon casually perjure themselves in front of congress about how they've ruined the financial lives of millions of people but are never called to task for it. The guy in life's candy store who lied gets a multi-million dollar investigation. What immoral cowards.

Yep. I came to say the exact thing, but you've said better.

Does it suck that you can lie in front of Congress and get away with it? Yes. But he is not the first and he's not even the worst.

I don't know -- I mean, who doesn't think Clemens was guilty? He did steroids and he lied about it, under oath. This jury seems about as dumb as the OJ jury.

Methinks that the jury was just tired of this bullshit. Especially once Pettitte showed up with his mis-remembering.

[Rovin Romine]

Well, it's one thing to think Clemens did it (I do) and it's another to prove it beyond a reasonable doubt.

Most of us get by in the world by making judgements on limited information. Do we buy the used car or not? Do we trust this doctor or dentist or do we get an odd vibe? Does the apartment seem reasonable to rent? Do we take the job or not? Most of us do just fine at this, and I'd be we're actually surprisingly accurate about things for the most part. If we waited till all our reasonable doubts were erased, most of us would never buy a used car. . .

Criminal law is different though - the government has the resources (massive!) and the ability to imprison people and ruin reputations one way or another. Depending on which governmental entity is charging someone, they might not even have to turn over all the evidence that they have against you! It's only fair that such a powerful entity be held to a standard that's as close to "Absolutely Certain" as we can make it, while allowing for human imperfections. Thus, "proof beyond a reasonable doubt." It really does make sense if you stop and think about it. Before I did (at law school and afterward) I sometimes found jury results (OJ) baffling. But when you take a big picture view of the whole system, a PBRD standard for juries makes the most sense by far.

***

Scotland's legal system has a third possible verdict - "Not Proven." I'm not sure what the ramifications are, such as how it works for subsequent prosecutions, etc. But it seems an interesting way to censure someone while saying the government wasn't able to prove the case to the jury's satisfaction.

[Worst Trade Evah]

I'm not saying get rid of the trial by jury system or change the standard of evidence or any of that. I'm saying my impression is that this jury -- like the OJ jury -- was a stupid jury. Juries might generally be right, and still occasionally capable of huge mistakes -- especially in high profile cases.

I don't have a problem with the government choosing to prosecute the case. It's too bad they apparently prosecuted it incompetently, had unfavorable instructions, balky witnesses, etc, but it's fine with me they went after Clemens. He lied about his steroid use in such a flagrant and public way, and it's a shame he's getting away with it. At least Barry got the tap on the wrist (and his buddy a year in jail). I don't even care that much about steroids at this point, and I'm still baffled that steroids in baseball is such a big deal, but not steroids in football, where they have to be rampant. But flagrant perjury should be challenged.

I was once a juror on a trial that lasted over 11 weeks. By the end, I felt like I was in this weird bubble, where basic facts about reality were in dispute. A building was burnt -- had there been massive renovations or was it already a wreck? A restaurant was there -- was it a nice place with real meals or a lousy counter with a few tables? After a smart lawyer goes on for a while, up can seem down, especially if the jury does not have access to other information. I think Clemens had a smart lawyer, the prosecutors were bad/constrained, and after a while the jury just said screw it.

Hmmm..just following up with my trial experience, which was 20 years ago, I'm pretty sure http://www.justice.g...4100/284128.pdf this is the same guy. I think 20 years ago he had an inn, arranged with his manager for it to get burned for insurance money, and then inflated his claim. The manager confessed and went to jail for arson, but somehow this guy didn't. I was on the jury for the subsequent civil fight over the insurance claim. It's all very weird. On reflection, I think I made some mistakes in the course of my jury service, but we did have a 14 point verdict to work through and a pretty complicated case. Wouldn't mind being able to do it over.

Edited by Worst Trade Evah, 19 June 2012 - 03:04 PM.

[Rovin Romine]

WTE,

Gotcha. I think we agree on most of what you're saying. I can't really comment on this specific jury without more info though.

I apologize if all the "factual" posting make it seem I'm talking down to you or anything like it. There's just a lot of confusion out there as to how the law works in the broad sense, and so I usually feel compelled to write little "it works like this" posts. I may have the reincarnated soul of a frustrated former civics teacher or something. God knows I could have used a civics curriculum early on. The things you learn as you go. . .

[xpisblack]

Scotland's legal system has a third possible verdict - "Not Proven." I'm not sure what the ramifications are, such as how it works for subsequent prosecutions, etc. But it seems an interesting way to censure someone while saying the government wasn't able to prove the case to the jury's satisfaction.

(Now, mind that I'm not a lawyer, have never served on a Scottish jury, and haven't been on trial there, either, so all of this comes from hearsay and what I've read over the years and been told.)

"Not guilty" is a relatively recent term in Scotland, I believe-- only from the early 18th century, and stemming (they say) from religious oppression by the Crown. The traditional verdicts were just Proven and Not Proven, and then one jury effectively nullified a case back in the day-- the case had been effectively made and the facts proven, but the jury considered it runny otter-shit and found a third option, which they claimed as an ancient right, or some such-- and (re)introduced the verdict of Not Guilty, which gradually spread out and grew and changed Proven into Guilty (with Not Proven becoming the third, bastard option betwixt the others). So now juries can acquit in either of the two ways, with the bastard verdict being perceived as less exculpatory (and far common) than Not Guilty, though they have the same legal effect.

Basically, Not Proven is taken to mean "Not guilty, but fucking well watch yourself in future, you great streak of piss" and I'm told it can imply that the judge is or the jury are fairly certain of the accused party's guilt, but cannot in good conscience convict based on the evidence, so the acquittal bears the social-- but not legal-- force of guilt and can be a right turkey-whap to one's credibility. Then again, most of the NP verdicts I've heard about have come from notoriously difficult-to-prove-unequivocally trials such as rape, for which juries sometimes use NP as a warning to scum-licking ass-maws to watch themselves, or domestic retaliation, for which juries figure the abused spouse has been punished enough, despite the evidence of guilt. I've often thought of it as "not guilty within the shadow of doubt."

But mind, Scottish criminal juries also comprise 15 people (and no voir dire or peremptory challenge procedure in place), convict with a simple majority of votes, allow no hung juries, demand corroboration of every bit of the prosecution's case (meaning every piece of evidence requires more than one witness to be considered valid), hear no opening statements, and only have to hear a proper defense if a submission of insufficient evidence for conviction is deemed by the judge (outwith the jury's presence) to fail, so the whole system is fundamentally quite different.

I think Not Proven has been used, unofficially, in old Canada and the States, too-- I remember something high-profile from an American case a decade or so back, but I can't be sure. It might have been the OJ case or the King trial or the Clinton impeachment or something else. And then there's the Italian verdict system, which I'm told allows five distinct verdicts, one to convict and four to acquit (but that might be an exaggeration or a rumour-- anyone have better intel?). But if the Clemens jurors had had the option of Not Proven, I bet they'd have at least considered that path. Ma'at knows the public have already made that particular leap.

Anyway, I've been a bit gobsmacked to hear and read how many folks have railed against this case, asking why the government would waste all that time, effort, and money on such a stupid thing. I mean, I can understand the frustration of watching 90-odd attorneys spend 5 years on a losing case, but shouldn't lying a) under oath, b) in public, and c) to some of the nation's most elevated elected officials be viciously quashed? That reaction to waste seems like a particularly shallow and results-based evaluation of a reasonable, if complex, chain of events.

[Mystic Merlin]

I'm not saying get rid of the trial by jury system or change the standard of evidence or any of that. I'm saying my impression is that this jury -- like the OJ jury -- was a stupid jury. Juries might generally be right, and still occasionally capable of huge mistakes -- especially in high profile cases.

Or Clemens was acquitted in relatively weak case brought against him by the government, a case backed by ONE witness. The jury concluded that the government didn't prove its case, not that Clemens did not perjure himself.

All your argument shows me is it's probably a good thing you weren't on the jury. Without an analysis of the specifics, your 'impressions' are worth their weight in internet ink.

[Worst Trade Evah]

Or Clemens was acquitted in relatively weak case brought against him by the government, a case backed by ONE witness. The jury concluded that the government didn't prove its case, not that Clemens did not perjure himself.

All your argument shows me is it's probably a good thing you weren't on the jury. Without an analysis of the specifics, your 'impressions' are worth their weight in internet ink.

Multiple witnesses plus physical evidence. Anyway, I offered an impression, not an argument, which is why I used the word "impression" originally. I know from personal experience what juries can face when every witness gets demolished and every fact contested. But mainly, I was disagreeing with those arguing the government should never even have taken the case, and with those offering what looked like to me a Panglossian view of juries.

Edited by Worst Trade Evah, 19 June 2012 - 05:52 PM.

[Average Reds]

Some of the jurors are starting to speak out:

Weaver said the testimony of Clemens' longtime friend and teammate, fellow pitcher Andy Pettitte, "was quite important to all of us, because he recanted." Pettitte testified that Clemens acknowledged in a conversation using HGH -- only to say under cross-examination it was fair to say there was a "50/50" chance he misunderstood Clemens.

http://espn.go.com/m...itness-credible

As I said immediately after his testimony, he was the key to the case, because it was critical for choir boy Andy to corroborate McNamee. Otherwise, McNamee would stand alone, and this wasn't going to cut it.

You know what I call Pettitte's injury? Karma.

[pedro1918]

HOUSTON -- Roger Clemens has signed with the Sugar Land Skeeters of the independent Atlantic League and is expected to start for them on Saturday at home against Bridgeport (Conn.).

The 50-year-old right-hander was acquitted in June of charges he lied to Congress when he denied using performance-enhancing drugs.

http://espn.go.com/m...-skeeters-texas

Oh my.

[Rovin Romine]

Huh. Actually the best thing for Clemens' HOF chances might be to get his HOF eligibility pushed back 5 years; a possibility if he signs a day long contract for a farewell pitch. Completely unlikely, of course. (But having 5 more years for anger to fade and for bonds/sosa to take the steroids hit in their first year of HOF eligibility sounds like a good idea to me.)

I noted this somewhere in passing, but I'm curious to see if MLB, the HOF, or any advocacy groups put together a report on Clemens that might be used to sway HOF voters. Seems like any of the stuff that happened in the trial is fair game. Lying to congress in it's criminal forms is one thing, but DNA testing is another. Potential liable issues would be tricky.

I also wonder if MLB/HOF might ban any players - again, just through a consideration of the evidence and application of their own powers, a la Pete Rose. I also think this is highly unlikely, but I haven't run across the idea/argument before. Then again, I don't spend too much time reading this sort of thing.

[HriniakPosterChild]

I also wonder if MLB/HOF might ban any players - again, just through a consideration of the evidence and application of their own powers, a la Pete Rose. I also think this is highly unlikely, but I haven't run across the idea/argument before. Then again, I don't spend too much time reading this sort of thing.

The commissioner banned Rose from baseball for life.

If you are saying that it is highly unlikely that Bud Selig will do the same to Roger Clemens, I agree. But I don't even wonder about it.

[soxhop411]

Astros


Jon Heyman ‏@JonHeymanCBS
#astros to scout clemens sept. 7. could sept 12 could be blastoff day in houston? @DKnobler

Of course they would.... This will not end anytime soon will it?

Edited by soxhop411, 30 August 2012 - 05:29 PM.

[Max Power]

This isn't a terrible idea if Roger wants to get into the Hall of Fame. He can set the clock back another 5 years at which time voters may take a more forgiving look at PED users in this era. On the other hand, if he comes back and fails a drug test, I might laugh myself to death.