Boswell: There will be no winners in Clemens perjury trial

Thomas Boswell
Columnist July 13, 2011

When Roger Clemens walked into Courtroom 16 of the District’s federal courthouse Wednesday, he saw a long, wood-paneled room with seats for jurors and, at the far end, the tall chair of U.S. District Judge Reggie B. Walton — about 60 feet 6 inches away.

If Clemens didn’t shiver, he has no grasp of the odds against getting out of this jam.

Tom Boswell is a Washington Post sports columnist. View Archive

By the time the prosecution finished its opening statement in United States v. Clemens, listing incriminating physical evidence of stupefying quantity to support its perjury charges, I was ready to bake Roger a large cake with a hacksaw inside it.

When the feds bring out photos of syringes with traces of steroids in them and say that the DNA belongs to you “to the exclusion of all other people on the planet,” it’s not a good start to the day. Can a jury deliver a verdict of really, really, really guilty?

However, our justice system is a marvel, especially if you can afford the best. By the time Clemens’s lawyer, Rusty Hardin, had finished his opening statement for the defense, I wasn’t sure, beyond a reasonable doubt, whether or not it was still Wednesday.

For the casual fan, this trial may be easy lifting. Baseball has already found Clemens as good as guilty in the Mitchell Report, a kind of court of public opinion with no written rules of procedure. Few legal experts believe Clemens will serve jail time, even if found guilty. That’s easy to say when you’re not the one doing the jolt.

But for those in Courtroom 16, it’s going to be a long, hard summer, and they’ll have to endure it without an iota of the cavalier, voyeuristic entertainment value that this trial will offer with its celebrity witnesses and humiliating details.

The jurors truly deserve our admiration, thanks and pity. They’re the ones with the tough job. We all have points of view. But they are tasked with being the ultimate “judges of the facts” with a man’s freedom at stake. The gulf between fan and juror is immense and especially sobering in an information-saturated world where so many feel free to say anything about anybody, no matter how venomous, and shrug, “Well, that’s my opinion.”

For these 16 citizens, including four alternates, Wednesday was the first of many tedious and very serious days. “You may wonder why the prosecution needs to call 45 witnesses,” Assistant U.S. Attorney Steven Durham said. Let’s see, maybe because We’re Not Losin’ This One.

Hide the sharp instruments in the jury room. This is going to take a while. Especially since part of Clemens’s strategy is to put the trial itself on trial. At one point, Clemens’s lawyer, referring to the congressional hearing at which Clemens voluntarily testified under oath, said “at the beginning of this circus . . .

“This is not a circus,” said Walton, though his eyes were juggling knives. “Do you think this is a circus?” Hardin was asked directly.

“Your honor, do I look suicidal?” Hardin said.

Actually, Hardin is anything except what he appears to be, and Clemens is probably lucky to have him on his side. The Texas lawyer is so smart that playing dumb comes easy. His style and tactics were on display immediately. He jumps between subjects, as if a bit addled, with the result that he seldom connects too many dots. He mentions to the jury that he’s getting older and worries that the phrases he uses are out of date.

Meanwhile, he’s thrown out a half-dozen arguments on Clemens’s behalf and raised doubts, then moved on before the picture is in full focus. He gets dates and names confused, when it suits him, I suspect, until your head hurts. But when he gets to his point, he makes it as clear as a bell and concisely so you’ll remember it, even if the stuff that led up to it doesn’t make much sense.

However, clarity carries risks. Hardin actually told the jury the basis of his case and the major points he intended to stress. First, he said, if they decide that Clemens took steroids and human growth hormone, they must find him guilty of perjuring himself before Congress. No wiggle room. I might have kept that to myself.

Also, he made it clear that attacking strength trainer Brian McNamee’s credibility (“he’s a liar”) was the core of his case. “They used to say that ‘The road to the Super Bowl goes through Pittsburgh,’ ” said Hardin. “In this trial, all roads go through McNamee.” And Andy Pettitte, Chuck Knoblauch and 42 other witnesses, plus physical evidence.

In his conclusion, Hardin intoned that Clemens’s only crime was having the bad judgment to stay connected to McNamee for so long. I’d have thought a bigger problem was the package of steroids that the government introduced, which it said was mailed to Clemens’s address in Houston “to be held for “B. McNamee.”

Perhaps the bigger “stretcher” that the defense tried to sell was the idea that for Clemens to cheat to gain an advantage (and win more, make more money and play longer) would be “so inconsistent with his career and beliefs that he never would have done it.”

What?

Now we know why Hardin tried to keep baseball fans off the jury. “If you ain’t cheatin’ then you ain’t tryin’ ” was at least as consistent with Clemens’s old-school beliefs as “Oh, gosh, let’s not do that.” The hard-core players think pros — as opposed to amateurs — get paid to win, not just to “play.”

So, do what it takes.

Hardin’s final line of defense, which he made with charts and ardor, was his indignation at how much time and money the prosecution had spent trying to catch Clemens in his lies. Look how little they got! Hardin held up a timeline of Clemens’s career with three bands indicating the periods when McNamee said he’d injected Clemens with steroids and HGH. What about all the rest of those years when Clemens won Cy Young Awards, asked Hardin. Who was juicin’ him then?

For fear of being sentenced to more time than Clemens will ever serve, I resisted the impulse to yell, “You only have to catch Willie Sutton robbing one bank, not all of ’em.”

For weeks, and perhaps weeks more, Capitol Hill will provide us with theater that will range from sad to silly to salacious, but will never be far from jail time serious. The government will look bad for chasing a ballplayer so hard and long after the game’s own Mitchell report had already blown up his reputation and his chances for Cooperstown.

Eventually, we will get a verdict in United States v. Clemens, a title no one ever imagined would appear on a court docket.

But from baseball and its union, which ignored steroid use for 15 years, to Congress and prosecutors who know that such cases make headlines and careers, to a great pitcher who can never restore his reputation, this will be one final interminable summer of steroid sorrows. And, in the end, there will be no winner.

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