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June 18, 2012

Another big loss for feds at trial: Rogers Clemens acquitted on all counts

As reported in this New York Times piece, "Roger Clemens, whose hard throws intimidated even the toughest batters and turned him into one of the best pitchers in baseball history, was acquitted Monday of charges that he lied to Congress in 2008 when he insisted he never used steroids or human growth hormone during his remarkably lengthy career." Here is more:

The verdict, which was rendered by a panel of eight women and four men who are largely uninterested in baseball.  It was a major, especially painful, defeat for the government in its second failed attempt at convicting a player whose legal problems highlighted baseball’s continuing drug woes.

Last spring, Clemens’s initial trial ended in a mistrial on only the second day of testimony when prosecutors bungled by showing the jury inadmissible evidence.  Critics said the prosecution of an athlete like Clemens — a seven-time Cy Young Award winner — was a waste of government time and money, but the United States attorney’s office in Washington pressed forward anyway.

This time, the trial lasted much longer.  The jurors heard from 46 witnesses over more than eight weeks before retreating into deliberations last Tuesday afternoon.  They had their work cut out for them.

Clemens had been charged with one count of obstructing Congress, three counts of making false statements and two counts of perjury in connection with his testimony to a House committee about his drug use.  Under the obstruction count, the jury had to review 13 statements Clemens made to Congress to determine whether he was innocent or guilty of each one.  To convict him on that count, the jury needed to find that he had lied only one of those 13 times.  He was acquitted of all charges.

When the jurors emerged from their debate, they delivered news that came as a ravaging blow to prosecutors, who had spent more than four years and likely millions of dollars on their case against him.

For Clemens, 49, and his family the verdict was a huge victory — and an obvious relief. If he had been convicted on all counts, he would have faced 10 years in federal prison. Still, all along, Clemens said that even a complete acquittal would not salvage his reputation, which he said has been permanently damaged by the government’s accusations that he cheated by using performance-enhancing drugs to prolong his career.

I wonder what Clemens' total fee for all his lawyers (who clearly earned their keep).

June 18, 2012 at 05:05 PM | Permalink

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The telling statistic is that the government presented 23 witnesses over 19 days; the two sides between them presented 46 witnesses over eight weeks.

If it’s that complicated, the proof that Clemens lied is probably not clear-cut; and by definition, if it’s not clear-cut, the defendant wins. At some point, the length of the trial benefits the defense.

The speed with which the jury disposed of the case strongly suggests that they weren’t in the mood to pore over every little fact. They might have done so had it been a murder case. I’m not saying perjury is irrelevant, but this particular example strikes me as a waste of time, and I’ll bet the jury saw it that way too.

Posted by: Marc Shepherd | Jun 18, 2012 5:29:49 PM

Love the result.

What an idiotic prosecution. Who cares whether Clemons lied to our government? Our government lies to us constantly.

Don't forget: the first trial in this case ended in a mistrial due to government misconduct -- governmental violation of a court order.

How many tens of millions of our tax dollars did our government spend on this fiasco? Where do we get a refund?

Posted by: Calif. Capital Defense Counsel | Jun 18, 2012 5:45:40 PM

Having taken a very public beating in this case, following closely on the heels of its even more public beating in the Edwards case, the present leadership of DOJ has some introspection to do -- right after they fork over to Congress the Fast and Furious documents they seem to have such a devil of a time finding.

I can say, having been at DOJ under both parties, and having held both career and political appointments, the judgment being exercised inside the Marble Palace these days leaves ample room for skepticism. You know you're not going to win every trial, but you have to do better than this.

Posted by: Bill Otis | Jun 18, 2012 6:00:33 PM

Bill, perhaps you can answer this:

How much direct influence do the president’s appointees exercise over which cases get prosecuted? I’ve never had the sense that the decision to prosecute would have come up to the top political staff at Justice.

Although the Clemens indictment came under the Obama administration, the investigation began under the Bush administration, after both the Democratic chairman and the ranking Republican in Congress told then-AG Mukasey that they believed they had been lied to.

This is not to suggest that the debacle is either Democratic or Republican in origin. I suspect it is neither. I think that ridiculously misguided prosecutions take place during the tenures of both parties. This is not the sort of error that either party makes more often than the other.

Posted by: Marc Shepherd | Jun 18, 2012 6:19:32 PM

all nice questions. but the real killer of a question is does he now have the balls after winning TWO trials to turn about and sue the govt for every dime he's lost in these trials and the 10's of millions his damaged rep is worth!

Now that would be the trial of the century!

Posted by: rodsmith | Jun 18, 2012 7:00:12 PM

These results suggest to me that juries may be revolting against our overcriminalized justice system. I hope it's true.

Posted by: William Jockusch | Jun 18, 2012 7:21:56 PM

My tax dollars hard at work I see. At least he wasn't convicted -- the DOJ deserved to get a black eye for (literally) making a federal case out of his testimony before Congress. It was a big deal, that never should of been a big deal in the first place (e.g. steroids in baseball) that has become a monumental waste of time, money, and attention.

Posted by: Guy | Jun 18, 2012 10:02:19 PM

Marc --

For the great majority of cases, political appointees, even at the relatively low level of United States Attorney, are not involved in the decision whether to prosecute. I would bet good money, however, that in both the Clemens and Edwards cases, that decision was made or at the minimum approved by either the AG or the DAG. Edwards had been a serious presidential candidate and the vice presidential candidate in 2004. In addition, the theory of prosecution was novel and, as some of my conservative friends have pointed out to me, seemed to be a test run for expanding control of campaign financing beyond what has been accepted as the status quo.

When senators start calling the AG to complain about perjury, you know right off that no mere AUSA is going to make the prosecution/no prosecution decision. Clemens is a Hall of Fame pitcher and is widely known to be a pal of the Bush family.

I don't want to be overly critical of either decision, but this is The Big Stage, and the old college try just doesn't get it. If Holder had made a decision not to prosecute, then (a) in Edwards's case, he would have been accused of taking a pass on a bigwig Democrat so as not to embarrass the party; and (b) in Clemens's case, showing disrespect for Congress and the imperative to cooperate truthfully with what Congress is investigating, whether or not Holder thought the investigation to be important or even rational. An important part of Holder's job is to protect his agency from any sort of Congressional wrath that could slice his agency's budget.

Posted by: Bill Otis | Jun 18, 2012 10:40:29 PM

Added to this and the silly Edwards case, didn't the feds. lose almost all counts against Barry Bonds?

Why don't the feds. spend their time prosecuting people who actually pose a danger to society? Nobody is in any danger because Roger Clemens, Barry Bonds, and John Edwards are out on the street. The government itself is way more dangerous than any of those three.

And, Bill Otis --- would the outcome of this prosecution have been any different if we were in a Romney administration? Wasn't this prosecution handled by non--political, line prosecutors?

Posted by: Calif. Capital Defense Counsel | Jun 18, 2012 10:41:54 PM

'An important part of Holder's job is to protect his agency from any sort of Congressional wrath that could slice his agency's budget.'

That is so much bullshit and how does that explain the impending Lance Armstrong doping expedition by the feds?? Just another dead horse dog and pony show by the DOJ paid for by the texpayer, get real you dinosaur the DOJ is out of control and has lost all accountability to anyone.

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Posted by: Supremacy Claus | Jun 19, 2012 4:17:44 AM

Buddy --

"...the DOJ is out of control and has lost all accountability to anyone."

Then you'll be pleased to learn that we have an election coming up.

Posted by: Bill Otis | Jun 19, 2012 9:10:56 AM

Clemens and Edwards are among the fortune few with the wherewithal capable of fending off DOJ predators coming to quell their blood lust.

Of course money and clout didn't work for Martha Stewart. No, she was nonetheless convicted and imprisoned for lying to federal bureaucrats questioning her about charges that were never ultimately brought against her.

Most Americans targeted by the system -- regardless of whether they've been wrongly accused -- end up choosing between decades in prison or a bogus plea agreement.

The importance of these high profile exonerations is the hope they provide that the public someday might catch on to the senseless horror show our federal justice system has become.

Posted by: John K | Jun 19, 2012 9:19:10 AM

CCDC --

"Why don't the feds. spend their time prosecuting people who actually pose a danger to society?"

There are those who thought McVeigh and Zacarias Moussaoui posed a danger to society. Did you support their prosecutions and sentences? Or would you have been working to put them back on the street?

In addition, since you support the legalization of all drugs, you would oppose federal prosecution of the biggest meth dealer in history, is that not the case? Perhaps, then, you are not the best arbiter of what amounts to a "public danger."

"...would the outcome of this prosecution have been any different if we were in a Romney administration? Wasn't this prosecution handled by non--political, line prosecutors?"

I have no specific evidence that the prosecution would have been undertaken by Romney or his administration (if there is one). Do you? And I'm sure you understand the difference between those who "handle" a prosecution and those, much higher up, who decide that there will BE a prosecution.

Posted by: Bill Otis | Jun 19, 2012 9:30:24 AM

fortunate few

Posted by: John K | Jun 19, 2012 9:39:51 AM

John K --

"Of course money and clout didn't work for Martha Stewart. No, she was nonetheless convicted and imprisoned for lying to federal bureaucrats questioning her about charges that were never ultimately brought against her."

You might consider the possibility that the reason there was a difference in outcome between Edwards and Clemons, on the one hand, and Stewart and Madoff, on the other, is that the feds had a better case on the merits against the latter two than against the former two.

Oh, wait, I forgot. In your world, the merits never get mentioned.

Scooter Libby, who had connections galore, also got convicted for, as you say, "lying to federal bureaucrats questioning [him] about charges that were never ultimately brought," but I don't recall your objecting to that. Indeed, if memory serves, your complaint in that instance was that he wasn't strung up.

Why the difference in your attitude? Politics, maybe?

Posted by: Bill Otis | Jun 19, 2012 9:44:44 AM

How exactly do Tim McVeigh and Zacarias Moussaoui fit into a discussion about what happened to Roger Clemens and John Edwards?

What's your point, Bill, that the DOJ is/should be doing both...going after those who pose clear threats to society AND engaging in pointless prosecutions of harmless Americans?

Posted by: John K | Jun 19, 2012 9:59:16 AM

If memory serves me, my Libby-case comments were to the point that conservatives seem to notice the unwarranted severity of federal sentences only when one of their own is on the skewer.

Fact is, Bill, I once wrote a newspaper column lamenting the unfair treatment of Tom DeLay by an abusive Texas proscutor. And as I hope we can agree, there is no more obnoxious, mean-spirited, soulless conservative on the planet than Tom DeLay.

Set upon by powerful agents intent on putting her in prison, Stewart blurted out a quintessentially human defensive remark that turned out not to be true. There's your merits.

What I was saying then and now is that the plausible threat of a five-year prison term for uttering a false remark under extreme distress is tyrannical at best.

BTW, Bill, tell me again about the honor and respect for truth exhibited in the FBI's policy that forbids recording interviews with targets and persons of interest.

Posted by: John K | Jun 19, 2012 11:00:46 AM

"How exactly do Tim McVeigh and Zacarias Moussaoui fit into a discussion about what happened to Roger Clemens and John Edwards?"

Are you new? They're red herrings aimed at diverting attention from an argument Bill is losing.

Also, Barry Bonds' prosecution was under an R administration, so there's zero reason to believe a Romney administration would have behaved any differently. This is not a Democrat thing nor a Republican thing, it's a prosecutor thing.

Posted by: Gritsforbreakfast | Jun 19, 2012 12:28:01 PM

Grits and John K --

The question I was asked was this: "Why don't the feds. spend their time prosecuting people who actually pose a danger to society?"

To that question, it is perfectly relevant, and apt, and hardly a red herring, to note that it was it was federal prosecutors, and not their childish critics who are all over this site, including often both of you, who prosecuted two major menaces to society. Of course there are many, many more than those two, as you know.

Your druggie ally CCDC thinks that meth, heroin and LSD also are not dangerous, and condemns such prosecutions with the same gusto you display about Clemons and Edwards. Do you join him?

Still, nice try, making as if I was dragging in McVeigh and Moussaoui in from thin air. I have to agree, though, that it's easy to criticize the answer if you pretend there was never a question to which it was given.

Posted by: Bill Otis | Jun 19, 2012 1:20:37 PM

John K --

"Set upon by powerful agents intent on putting her in prison, Stewart blurted out a quintessentially human defensive remark that turned out not to be true. There's your merits."

Translation: Once a couple middle class agents wearing suits from TJ Max got through Ms. Stewart's phalanx of secretaries, assistants, executive assistants, schedulers, counselors and handlers, and were able to ask her a question, Ms. Multi-Zillionaire lied to cover her posterior portions.

"There's your merits."

Translation: There's the anti-prosecution version of poor little Miss Stewart. Of course the ACTUAL merits were heard by the jury, which does not approach things with the poisoned outlook that characterizes your thinking about white collar prosecutions.

We saw yesterday and in the Edwards trial that juries are perfectly capable of saying NO to the big, bad government when the case just isn't there. When is is there, as it was against Ms. Stewart, they are also capable of saying YES.

As is clear from my first entry on this thread (Bill Otis | Jun 18, 2012 6:00:33 PM), I am more than content to live with the jury's judgment when it goes against the government. The jury knows the case better than I (or you) do. The difference between us is that, given the jury's superior knowledge, I am also content to live with its judgment when it convicts.

Tip of the month: If you don't want to come a cropper of any unfortunate consequences from lying, don't lie.

Posted by: Bill Otis | Jun 19, 2012 1:42:11 PM

The question isn't whether the feds do a good job of bagging dangerous criminals. It's whether there are enough actual bad guys to keep them busy.

Posted by: John K | Jun 19, 2012 1:45:22 PM

John K --

"The question isn't whether the feds do a good job of bagging dangerous criminals."

Au contraire, that is EXACTLY the question CCDC asked me: "Why don't the feds. spend their time prosecuting people who actually pose a danger to society?"

When I answered it, giving concrete examples, you and Grits got very frumpy. Time to get unfrumpy.

P.S. I wonder if you might provide a link to your Tom DeLay column.

Posted by: Bill Otis | Jun 19, 2012 1:55:48 PM

Writ large, how important are these cases? The prosecution side, though some around here only like to rail against soulless defense attorneys, at times make mistakes. No system is perfect. I don't think it deserves this heavy-handed b.s. but lying to Congress isn't a victimless crime. An oath means something. If a member of Congress lies under oath, s/he also should be held accountable. But, there is a matter of degree here and worthwhile effort.

Posted by: Joe | Jun 19, 2012 3:17:54 PM

Every knows though that the government and pols can lie to you but you cannot lie the it/them, so mission accomplished.

Posted by: George | Jun 19, 2012 3:51:53 PM

Joe --

"The prosecution side, though some around here only like to rail against soulless defense attorneys, at times make mistakes."

I don't recall a single person here saying that defense attorneys are "soulless" or anything similar. Are you just making that up?

While we're at it, what do you make of the performance of Jerry Sandusky's defense attorney?

"An oath means something."

Nailed that one big time. Would that others holding your general outlook thought the same thing.

Posted by: Bill Otis | Jun 19, 2012 4:15:11 PM

An oath means something.

I would agree. I’m not sure it justifies a $40 million investigation and prosecution, on an issue I am not sure why Congress was even investigating in the first place. Some crimes just might not be worth the effort to prosecute, even assuming a Clemens was in fact guilty.

I do wonder why Bill Otis seems so sure that a Republican administration would not have gone through with this. I realize that Bill dislikes Eric Holder, a not unreasonable position to take, but the decision seems non-partisan to me.

Posted by: Marc Shepherd | Jun 19, 2012 4:31:34 PM

Marc --

"I do wonder why Bill Otis seems so sure that a Republican administration would not have gone through with this."

That's not what I said. What I said was, "I have no specific evidence that the prosecution would have been undertaken by Romney or his administration (if there is one)."

"I realize that Bill dislikes Eric Holder, a not unreasonable position to take, but the decision seems non-partisan to me."

I actually don't dislike him personally. I know him only very slightly, and that only because I've been kicking around this town long enough to know bunches of people who've been kicking around with me, both among the Reps and the Dems. But Holder has always been perfectly pleasant to me, and has a better and more ironic sense of humor than comes across in his public appearances.

I disagree with many of his decisions, you bet. But even then, I offered a defense, as at least plausible, of his decision to go forward with the prosecutions of Edwards and Clemons, see my response to you at Bill Otis | Jun 18, 2012 10:40:29 PM.

Posted by: Bill Otis | Jun 19, 2012 4:59:17 PM

I don't recall a single person here saying that defense attorneys are "soulless" or anything similar. Are you just making that up?

The word means "lacking in sensitivity or nobility." Yes, I think some people from time to time have used language that suggests defense attorneys in certain cases lacked "nobility." It being an opinion, one might disagree. I'm not sure what level of falsity is present with such a vague term.

Yes, Marc Shepherd, I agree. This would be different than "Who cares whether Clemons lied to our government?" Admittedly, the concern is not merely "lying."

Posted by: Joe | Jun 19, 2012 5:49:01 PM

For instance, when someone says a defense attorneys has a "depraved mentality," is it "lying" to use the adjective that means "Lacking sensitivity or the capacity for deep feeling" or does "depraved" mean something else?

Posted by: Joe | Jun 19, 2012 5:57:27 PM

Bill Otis: You're a shameless Republican hack. You wouldn't have criticized the Edwards prosecution if the Republicans were running the show at DOJ right now. And, I'm quite sure that you don't give a hoot about torture boy Jay Bybee sitting on the 9th Circuit right now. Just admit that you are a shameless Republican hack. It may be cathartic for you.

Posted by: Shane Stevenson | Jun 19, 2012 8:26:45 PM

Shane Stevenson --

"And, I'm quite sure that you don't give a hoot about torture boy Jay Bybee sitting on the 9th Circuit right now."

Wrong again. I do give a hoot, consisting of being happy that Judge Bybee exists as a counterweight to the lefties who make the Ninth Circuit the most reversed federal appellate court by a fare-thee-well.

P.S. I wonder whether those who are so disturbed that federalist has called some judges hacks will be at all put off that Judge Bybee is now referred to as "torture boy."

Posted by: Bill Otis | Jun 19, 2012 11:20:57 PM

These days, it seems utterly amazing that an individual, any individual, could go against the unlimited resources of a federal prosecutor and win. That there could be anything like a pattern of such victories defies logic - or blows my mind at any rate. Is there any possibility at all that the cases were brought for reasons other than the "duty" arguments that Bill mentioned? I mean, is there a possible long term benefit I am not seeing? I mean, I am OK assuming the DOJ would rather win than lose, but it is a repeat player in litigation. Are there some benefits down the road that might emerge from these "losses?"

Posted by: P.S. Ruckman, Jr. | Jun 20, 2012 1:25:30 AM

well P.S. using what they have done in the area of sex crimes i'd lean toward them using these cases as an excuse to "tweek" the laws to help them get convictions.

Posted by: rodsmith | Jun 20, 2012 2:12:16 PM

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