Despite Verdict, Many Still Find Clemens Guilty
NEAL CONAN, HOST:
Yesterday, a federal jury here in Washington found Roger Clemens not guilty on all charges of obstruction and lying to Congress about steroid use. For Clemens, the verdict effectively ends a nearly five-year ordeal which begun when he was named in the Mitchell Report as one of several Major League Baseball players who used performance-enhancing drugs. The court of public opinion may come to a different verdict. Many fans and sportswriters declared Clemens guilty long ago and refuse to believe he's innocent.
If that's you, what would it take to change your mind? 800-989-8255. Email: firstname.lastname@example.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION. Jonathan Turley is a professor of law at George Washington University who's represented clients in high-profile criminal cases. He joins us here in Studio 3A. Nice to have you back on the program.
JONATHAN TURLEY: Thank you, Neal.
CONAN: And one of Clemens' advisers published a piece in the Washington Post today where he argued that Roger Clemens did everything an innocent man would do after the Mitchell Report came out.
TURLEY: Well, that's true. The fact is that this is a roaring victory by any measure. Not only did the jury come in entirely for him, it came in quick. I mean...
CONAN: Slam dunk, I think is the word you're looking for...
CONAN: ...another sports analogy.
TURLEY: Yeah. Clemens was actually working out with his sons and had to rush back because it happened so quickly. But, of course, there is a difference between a criminal acquittal and being forgiven or being found innocent in the public. And the public tends to view celebrity trials as an exercise of good lawyering and creative arguments. They tend to view acquittals with a certain degree of suspicion, particularly for celebrities. I think celebrities have a much harder time than do other people. The assumption is that they did do something and got away with it.
CONAN: So this is putting Clemens not the crime but the character, the celebrity character in the same categories as O.J. Simpson or Casey Anthony. Just because the prosecution didn't prove it, didn't mean they didn't do it.
TURLEY: Yeah. Actually, the analogy to O.J. Simpson you draw is an interesting one because like O.J. Simpson, the Clemens case turned largely on a single witness - this guy Brian McNamee.
TURLEY: McNamee - sorry. And McNamee really had an impact much like Mark Fuhrman did, the detective in the O.J. Simpson case. That is, the problem is that when you have a witness that is so central to the case and that witness implodes, it can have this cascading effect on evidence. So the case of Fuhrman, everything Fuhrman touched seem immediately tossed from the table by the jury. In the case of Clemens, you have this one witness who even the prosecutors suggested was not a perfect person and was flawed as a witness.
And it came down therefore to a credibility question. And I - many people looked at the Clemens trial and asked whether it was cost-justified when you were left largely with two individuals and a credibility question.
CONAN: Case also turned on DNA evidence - both cases indeed.
CONAN: And there were questions about the chain of custody and whether there were some tampering going on in the O.J. Simpson case. And in the Roger Clemens case, it was needles and cotton balls that Mr. McNamee kept stored in a beer can for any number of years, not...
CONAN: ...recommended procedure.
TURLEY: No. The beer can storage option has largely been rejected by the industry, and what you really had was very good lawyering on the defense side. And they took apart how imperfect this process was, how contamination, even if it wasn't intentional, would be almost inevitable, and they strongly suggested that it was intentional. They strongly suggested that this was an effort to create false evidence against Clemens. But I think that when you look at the speed and the range of acquittals, you have a jury that didn't really find much credible at least to base a conviction on. This was not a close question.
CONAN: So a stunning legal victory, but this is still going to have repercussions throughout Roger Clemens' life. People will continue to believe that he was involved in performance-enhancing drugs no matter what he says. And this will probably keep him out of the Hall of Fame, at least for several years.
TURLEY: I, certainly, think that's true. And I can understand why he feels that's unfair. You know, with Pete Rose, he admitted to gambling...
TURLEY: ...eventually. Clemens has always denied this. He really will suffer in two ways. One is the Hall of Fame, as you note, and the other one is, frankly, financial. He is worth millions in terms of a brand. No one is going to put Roger Clemens on their brand as long as he is tainted in this way.
But there's also the question in terms of cost efficiency with all these investigations. You had the Barry Bonds investigation that went on for seven years and that resulted in a single conviction of obstruction, you know, where he was alleged to have misled the - that he misled the grand jury. And that resulted in just 30 days of home confinement, and he's appealing that. And so...
CONAN: Because he's a convicted felon - he doesn't want to be a convicted felon.
TURLEY: That's right. And so there is a question of the justification to go forward with these cases, and whether they're being driver more by headlines by prosecutors instead of the merits.
CONAN: And as you say, in both cases, it seemed, well, the principal witness they wanted to testify in the Barry Bonds case refused to testify, and end up spending, what, a couple of years overall in prison for contempt. But given the fact that he was not going to testify, they had thin evidence. They had, obviously, thin evidence against Roger Clemens.
TURLEY: Well, yeah. In fact, the wheels were falling off this thing as soon as they got it on the road. I mean, you had Andy Pettitte, who, ultimately, testified that he was only 50 percent sure that Clemens ever told him he used HGH in terms of performance-enhancing drugs. Now, I mean, this is pretty thin soup in a criminal case where the presumption is supposed to go towards the defendant.
And in some regards, it follows the Edwards case in a disturbing pattern. I mean, you have John Edwards who was acquitted of a single count, and then the remaining five charges were dropped. But that was a case that, even before it began, many people questioned it as why the Department of Justice was bringing the case. Many of us questioned whether the Department of Justice had really stretched the law to the - past the breaking point. And ultimately, they spent millions of dollars and came up with nothing.
CONAN: So there's - Mr. Allen, the former National Security advisor to President Reagan, after being cleared in a criminal investigation says, where do I go to get my reputation back?
TURLEY: And the answer is that office is closed. I'm not sure it ever opened. That is the problem. For those of us who deal with high-profile cases, you have to do your very best to not only have a strategy to win, but I tell my students all the time, you have to have a strategy for a life after the trial and that can be very difficult. And you have to make very tough decisions as to the degree to which you go public. In a couple of cases, I've allowed clients to go on "60 Minutes" before a trial precisely because they were being so tainted through leaks from the Department of Justice that I felt that there'd be nothing left of them even if we win the case.
That was the case in the so-called Doctor Plague, the Tom Butler case, where we put him on "60 Minutes" so people could see him and hear what happened. In one case, I did an espionage case where we actually took out an entire high school stadium and invited this whole town to come because we had won the case, and I didn't want him going back to a small town in Ohio with everyone whispering. So I invited the whole town to come and ask us all the questions you want because the problem is that what the jury sees in the court is so different from what people read. They just read that there's a syringe and that comes with a lot of importance, but they don't read about how unreliable that type of evidence is.
CONAN: We're talking with Jonathan Turley about the Roger Clemens case, innocent on all counts yesterday, but still, in the public eye, by many people, regarded as somebody who got away with something. 800-989-8255, email us: email@example.com. And we'll start with Ron(ph). Ron with us from Manchester in New Hampshire.
RON: Hi. I just wanted to comment, this reminded a lot of the Michael Jackson case. What it all comes down to is someone who has been accused of something, haven't been able to prove that he did it. He maintained his innocence and, you know, if we're going to live in a civilized society, we basically have to give people the benefit of the doubt unless we have a reason not to.
CONAN: The Michael Jackson case where he was accused of sexual abuse of children?
RON: Correct. And they were never able to prove it. Yes, it's - if he, indeed, did it, it's heinous. But, you know, how do we want to live? Do we want to live and just accuse people of thing? Do we want to assume the worst? Or, you know, do we want to not accuse one another unless we have sufficient evidence?
CONAN: He raises, Jon Turley, a good point, but there's a difference between - again, we're talking Michael Jackson at his word. He was cleared. Or sending your kid over to play?
TURLEY: Yes, that's certainly true. I have to say that I agree entirely with the comment in that we have become a - we're a celebrity-driven society, and we've become extremely judgmental. We tend to assume the worst of celebrities. I have no problem believing Clemens. I mean, the - he says that he was injected with B-12 and the painkiller...
CONAN: Perfectly legal.
TURLEY: ...lidocaine. Right. And...
CONAN: And that's where the syringes came from and the blood evidence.
TURLEY: That's right. And, you know, even the trainer said that he thought that Clemens could pass a polygraph, that he believes Clemens does believe that he...
CONAN: He has offered to take a polygraph.
TURLEY: Right, and he says, I think Clemens probably could pass the polygraph. And you look at that evidence, you're like, really, is this not a case where prosecutorial discretion should kick in and say, we just don't have it. I mean, that before you take someone into such a damaging trial, you really should have more than one trainer who has changed his testimony in critical ways five times.
RON: And also, it's important that he didn't - even if he did do it, he's not a danger to anyone else. You know, that's sort of different than the Michael Jackson analogy. Even if he is guilty...
RON: ...he's not a danger.
CONAN: ...it's a danger when people lie to Congress knowingly and try to hide information and that does become a problem.
TURLEY: Well, there is this issue, you know, how much effort should we put into this. I mean, I'm a Cubs fan, so we've been trying to get our team to take performance-enhancing drugs for years, but it is a serious problem. The problem, though, with a case based on lying to Congress is that it used to be there was a thing called an exculpatory no, that prosecutors wouldn't prosecute you for denying to police that you committed a crime. That has become less common. It's not accepted much as a defense. But there is an uneasy feeling people have when Congress goes on these tears, like in professional baseball. Many people wondered why Congress was getting involved. And then they started pulling in these athletes that were denying they took drugs, asking them, did you take drugs? They denied it and then saying, well, you should investigate them because they probably lied.
CONAN: Jonathan Turley of the George Washington University Law School. You're listening to TALK OF THE NATION from NPR News.
And this email from Harriett(ph): Baseball is entertainment on TV. It has ads and celebrities. There seems no earthly reason for Congress to investigate Clemens for drug-taking anymore than they would investigate Justin Bieber or Meryl Streep. Baseball Hall of Famer, Oscar winner, what's the difference? Arrest those people if they do something illegal. Do the same thing with sports entertainers.
TURLEY: Well, I do think that there is a valid reason to fight performance-enhancing drugs in these professional sports. I think everyone does. The degree to which Congress got involved, as I mentioned before, left many of us uncomfortable. It wasn't McCarthy hearings. But there was a question of why people, like Clemens, were being drag again. Some of the reports that were viewed as incriminating, including a secret affidavit, turned out to be false. They said that Clemens was mentioned in an affidavit by another individual. That affidavit was released. Clemens wasn't even mentioned. And so there was a discomfort where Congress knew this people would come in and deny they took the drugs. And then they turned around and called the Department of Justice and said, well, they just denied it. Why don't you now investigate them for lying to us?
CONAN: Here's another email. This one from Carol(ph) in Little Rock: Aside from guilt or innocence of Roger Clemens, would you comment on this question? Why is a major sports league, which generates billions of dollars, deferring to the U.S. Congress, then the U.S. justice system the settlement of its own internal integrity issues at huge taxpayer expense to ignore its own responsibilities in a very sensitive issue and pass along to Congress? Is this not itself an ethical issue? I guess, but in another sense, it was Congress who said, wait a minute. We'd like you to come and tell us about it.
TURLEY: Yeah. Believe me, no one had to drop a dime with Congress. Congress was desperate to get involved in this, and that's part of the bad optics here. There's many people felt that Congress was jumping on this. There could be no more popular thing than to protect the integrity of baseball, the national pastime. And then there was the feeling that the prosecutors were really chasing the headlines on this, that they went with a weak case that was stronger in the public realm than it was in a court of law.
CONAN: Sheila(ph) tweeted: Not guilty is not the same as innocent. As we pointed out, that's going to be the position that a lot of people take.
Gary(ph) is on the line, calling us from Corvallis in Oregon.
CONAN: Hi, Gary. Yes, you're on the air. Go ahead, please.
GARY: Two comments. First, I think it was a waste of time and money to bring the case in the first place, but, you know, as you say, we're driven by celebrity and drama and all the reality stuff. I fall on the side who, even though he was found not guilty, I don't believe he was innocent. And I understand, you know, if you do a misdeed, it's very difficult. It's not part of human nature just to readily admit that. And once you fail to do so, it becomes increasingly difficult. If you come out and tell the truth, people are understanding and maybe more forgiving. But I think he falls in amongst people like John Edwards or O.J. Simpson or Bill Clinton or any of the so-called celebrities that have gotten called out for maybe being less than forthright. And, you know, if people would just come out and admit that they screwed up, and people, you know, we're pretty forgiving.
CONAN: But what if...
GARY: But if you try and hide it, you're not.
CONAN: What if he didn't do it?
CONAN: He should admit to something he didn't do?
GARY: I supposed that's possible. But as far as what I've seen and heard, my inclination is - fall upon the side of, he probably did something he shouldn't have done. And, you know, I don't really care if he got away with is or anything per se, but I think the point is people have a hard time being honest and even more so when a celebrity is involved.
CONAN: All right. Thanks very much for the call. Appreciate it, Gary.
CONAN: Jonathan Turley, I guess this is never going to go away.
TURLEY: It probably won't. I think the - by the way, the analogy of John Edwards is also interesting because there, too, you had a single witness, that was the entire government case. You had this guy, Andrew Young. And the jury did not really believe Edwards was entirely innocent, but they had a real problem basing a conviction on that witness as they did here.
CONAN: Jonathan Turley, professor of law at George Washington University, with us here in Studio 3A. Tomorrow, political junkie Ken Rudin, returns. Join us for that. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.