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Kallas: Pettitte’s Testimony Key To Clemens Acquittal

Roger Clemens and attorney Rusty Hardin (credit: Chip Somodevilla
Getty Images News)

Roger Clemens and attorney Rusty Hardin (credit: Chip Somodevilla
Getty Images News)

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By Steve Kallas
» More Columns

On Monday, June 18, 2012, a federal jury of eight women and four men acquitted Roger Clemens on all six counts in his federal perjury trial.  While much will be made (and correctly so) of how the Clemens defense team destroyed the credibility of his main accuser, former trainer Brian McNamee, it says here that the testimony of Andy Pettitte, the only other person who might have directly pointed the finger at Clemens (based on his [Pettitte’s] prior testimony before Congress), was also instrumental in gaining the acquittal.

WHAT HAPPENED?

Well, you’d have to guess, at a minimum, that a number of the female jurors were swayed by Clemens and his down-home attorney, Rusty Hardin.  But you would also have to think that, other than the testimony of McNamee, there was simply no direct evidence of actually seeing Clemens injected with steroids and HGH.

Not surprisingly, the jury must have rejected the evidence (as it was) stuck inside a beer can in a garage or a basement for years.

Despite expert testimony both ways, who could really believe that this was enough concrete evidence to send a man to jail (as Judge Walton has inappropriately said he would do at the first botched trial had Clemens been convicted)?  The answer appears to be that no juror believed this was sufficient concrete evidence.

WHAT ABOUT THE PETTITTE TESTIMONY?

Well, the lawyers surrounding the Congressional investigation had tried to digest Pettitte’s February 2008 testimony into a damning two-page affidavit which was publicly released at the Congressional hearings.  It clearly stated, without equivocation, that Clemens told Pettitte that he (Clemens) had used HGH.

In reality, Pettitte had given a 105-page deposition which was replete with contradictions that could have been (and turned out to be) very helpful to the defense (see Kallas Remarks, July 5, 2011, “Andy Pettitte Might Get The Save For Roger Clemens”).  Pettitte, apparently, wasn’t quite sure and, frankly, was the last guy on the planet who wanted to put his idol and one-time best friend in prison.

So he didn’t, and Roger Clemens walks free.

WHAT ABOUT THE OBSTRUCTION OF CONGRESS CHARGE?

If Roger Clemens was going to be convicted of any of the charges, it was the Obstruction of Congress charge.  Thirteen statements were listed in the indictment and, if the jury believed that Clemens lied about any one of them and they were material or relevant to the work of the Congressional Committee as distinguished from unimportant or trivial facts, he could have been convicted of this felony.

But the jury found that either Clemens didn’t lie or that such statements were not material or relevant to the work of the committee.  For example, it seems pretty clear that Roger Clemens attended that now infamous party in 1998 at the house of Jose Canseco where, allegedly, Clemens and Canseco had a conversation with a known steroids supplier.

But in that specific instance (the prosecution showed pictures of Clemens at the party as well as testimony that he was at the party), the jury probably found that a conversation and/or just being at a party were not sufficiently relevant to the Congressional Committee’s work.  Thus, the acquittal.

WHAT ABOUT THE COURT OF PUBLIC OPINION?

Well, that could be a problem for Roger Clemens.  The general public and baseball fans, as a general notion (and without limitation on testimony and/or evidence as was seen in the Clemens trial itself due to the Federal Rules of Evidence), probably will still believe that Clemens did something wrong.

It’s hard to prove a negative, but Roger Clemens will always have a “not guilty” verdict to fall back on.  The question becomes, will members of the general public and baseball fans accept that?  Most times people do, but sometimes people don’t (see, for example, O.J. Simpson).

WHAT ABOUT THE HALL OF FAME?

Certainly, initially, it will be hard for Roger Clemens to get into the Hall of Fame.  You will get a sense one way or the other when the vote comes up for Barry Bonds.  Remember, now, that Bonds was convicted while Clemens was not (and Bonds’s conviction is on appeal, where he actually has, in this writer’s opinion, a chance to win).

While this writer may be in the minority, a strong case can be made that both Barry Bonds and Roger Clemens were Hall of Famers before the time of when they were accused of taking steroids and/or HGH (although that discussion is for another time).  It doesn’t look like Hall of Fame voters are going to make that distinction now (we’ll wait until the Bonds vote to know for sure, but probably not enough of them to get Bonds elected – 75%) and who knows what, if any, distinction will be made in the future.

We’ll just have to wait and see.  Roger Clemens will, as well.

But as a free man.

What do you think of the verdict? Leave a comment below.