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My Verdict

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

As I wrote earlier, this hearing was not going to be like the last one. We heard some tough questioning, though hardly skillful cross-examination; we saw previously obtained affidavits; we heard the opinions of differing medical experts; and we learned there were syringes and gauze that are yet to be examined for their authenticity and probative weight.

Now we can begin to deliberate.

What are we to make of the affidavits from Mr. and Mrs. Pettitte? According to Chairman Waxman?s opening remarks, this is devastating to the credibility of Clemens. But was it? Pettitte recalls that when he confronted Clemens with his prior ?admission? of past HGH use, Clemens immediately said that was not what he had told him, that only his wife had taken the drug, and that he never did? That is certainly consistent with the testimony of Clemens today. And if he had previously admitted to such use to Pettitte, and if they were so close, why would Clemens deny what he had said five years earlier? I find it just as credible that Pettitte simply misunderstood Clemens?s earlier remarks but in good faith still believed he had accurately recalled what Clemens had told him earlier. Of course, the earlier conversation was before Mrs. Clemens had taken HGH but the questioning was not very sharp on this point. Mrs. Pettitte?s affidavit doesn?t add anything to the mix because all she knew was what Pettitte told her.

The syringes and the gauze are more troubling. If DNA testing confirms it is the blood of Clemens on an object laced with either steroids or HGH, these objects may be the equivalent of Monica?s blue dress. But the absence of a controlled chain of custody probably makes the evidence inadmissible in any criminal prosecution and the reason for that calls into question the probative value of the evidence. Why would McNamee keep such evidence and only of Clemens? Why did he not reveal such evidence to prosecutors breathing down his neck or to Mitchell and his staff but suddenly produced them after he admits he was furious at Clemens for playing their taped conversation and revealing to the public the details of his sick son? I find no credible answers to these questions that would allow me to trust the authenticity of the objects.

Finally, whose testimony had the ring of truth based on their body language and demeanor and motive for being deceitful? The one qualification we all have as jurors is our ability to assess the credibility of witnesses based on our experiences in every day life. But that is a tool with varying degrees of sharpness. All of us have rightly judged someone a liar but we have all also been deceived once or twice.

Here McNamee is an admitted serial liar not only to the authorities but also to the press, his friends and his employers. Clemens, on the other hand, certainly has greater motive to lie; his reputation and legacy have been placed on the line.

For what it is worth, I remain unconvinced of Clemens?s guilt. I would have to believe if Clemens did what he is accused of doing more evidence would be out there: records of his purchase of the illegal substances, medical evidence of his steroid use, the testimony of his trainers or close friends, something more than what we have. Given the amount of resources spent to uncover this evidence, and believe me too much money and time has already been spent, such evidence if it ever existed would have surfaced.

So I find in favor of Mr. Clemens. Tell me why I am wrong.

Full post as published by Sports Law Blog on February 13, 2008 (boomark / email).