Sunday, June 24, 2012

Civics 101

Okay folks, let's get something straight that I thought should have been clear after my post about Ryan Braun.

Most of us likely first learned this in 8th grade Civics class and since then have forgotten, misunderstood, misconstrued, or just plain ignored it. And it is this: "not guilty" does not mean "innocent."

I've been following the criminal trials of sports figures in Pennsylvania and DC with considerable interest over the past few weeks. I would assume that most lawyers, even those with limited criminal law experience (like me) saw the verdict in the Roger Clemens trial coming. The decision to take the Clemens case to trial, in the wake of the debacle of the Barry Bonds trial, was questionable to begin with. That the "star" witness of the government, Brian MacNamee, was a slimy, lying personal trainer/drug dealer didn't help.

The first trial ended by mistrial due to prosecutorial shenanigans that could have ended the case right then and there. Whether by mistake or a conscious decision, the prosecutors showed the jury a video tape that contained testimony that the Judge had already, clearly, ruled was not admissible. If it was a mistake, it was one that, in the words of the presiding Judge, "a first year law student" wouldn't make. If it was intentional, then it evidenced the desperateness with which the prosecution viewed its case. Either way, it wasn't a good sign.

When the Judge ruled that double jeopardy did not attach to the first trial, that the prosecution decided to take a second shot at Clemens was not surprising, but troubling. After seven weeks of laborious testimony the jury found Clemens not guilty. According to one of the jurors interviewed after the trial, the jury didn't believe MacNamee. Surprise!

Predictably, the Clemens verdict was announced as a complete exoneration. Surprisingly, the declaration came not from Clemens (who perhaps has at least learned something about prevarication through this process and merely said that he was grateful to the jurors and glad it was over) but from his grandstanding attorney, Rusty Hardin. After the verdict Hardin proclaimed: “I hope those in the public who made up their minds before there was a trial will now back up and entertain the possibility of what he (Clemens) has always said -- using steroids and HGH is cheating and was totally contrary to his entire career." 

Sorry Rusty, but the bit about steroid use being "totally contrary" to Clemens' career is simply absurd. Everything about Clemens' career, and particularly the dramatic, inexplicable improvement in his performance in his mid-to-late 30's (for example, his ERA at age 33 -- in the 1995 season-- was 4.18; at 34, 2.63; at 35, 2.05; and at 36, 2.65) screams PED use.

The decision of the government to try Clemens not once but twice on a case with flimsy physical evidence (cotton swabs in a beer can? Seriously?) and a reprehensible star witness likely gives Clemens ammunition to proclaim his innocence when staking a claim for election to the Baseball Hall of Fame, something that would likely be unimaginable (see, McGwire, Mark, and Sosa, Sammy) if his lying to Congress had merely been ignored.

Clemens posing with wife Debbie.
She admitted to being injected with HGH. 

Which, of course, may be the other problem. As an officer of the court, I firmly believe that oaths should be taken seriously and those who lie under oath should be punished. But can anyone in the general public get all that worked up about lying to Congress, particularly since people in much higher postiions (i.e., President, Supreme Court Justice) have done it and gotten away with it in the past? And don't even get me started with the propensity of politicians to lie -- there's an entire cottage industry devoted to fact-checking political ads for heaven's sake.

To be honest, my interest in the Roger Clemens perjury trial waxed and waned with its interminability, while that in the Jerry Sandusky case did not, as the prosecution wrapped up its case in less than four days of testimony. The prosecution undoubtedly could have called more witnesses and introduced more physical evidence but likely thought they ran the risk of numbing the jury to the gruesome and overwhelming testimony against Sandusky.

Some were surprised that the jury took as long as it did in deliberation and expressed concern that they might actually be considering a not guilty verdict. I thought at the time (and news articles afterwards have seemed to bear this out) that the jury was simply doing what the judge had instructed them to do: carefully consider the evidence with regard to each and every crime with which Sandusky was charged.

That the jury found Sandusky not guilty on three of the 48 counts against him speaks volumes of the care with which the jury considered the evidence and the charges, and likely makes any potential appeal by Sandusky much more difficult. That one of those counts was one against the unnamed and unidentified child that former Penn State assistant coach Mike McQueary testified about is also damning, as the jurors found his testimony particularly helpful in their overall deliberations, and yet apparently decided that there was not sufficient evidence of a sexual act in that case.

Both in the Clemens and Sandusky trials our system of justice was served. In Clemens case, it probably never should have gotten to that point. But while Sandusky was guilty, over and over again, Clemens was not found innocent. Don't let anyone tell you differently.

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