Prosecution can't get out of its way
Clemens' defense finds success in prosecution blunders, jurors' questions
WASHINGTON -- As the Roger Clemens legal team on Wednesday presented a fascinating and entertaining baseball seminar to the federal jury that will decide whether Clemens is guilty of perjury, the prosecutors must have known they were in trouble.
Again and again, they stood and voiced highly technical objections to testimony from two of Clemens' former catchers and a former assistant general manager. On many of their objections, prosecutors Steven Durham and Gilberto Guerrero Jr. insisted on arguing their positions in bench conferences, away from jurors.
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The prosecution's frequent objections and their insistence on extensive arguments left some jurors shaking their heads in apparent frustration and others watching stone-faced as the arguments over the objections went on and on. But some of the jurors knew exactly what they could do to overcome the prosecution's stubborn attempts to prevent them from hearing what the Clemens lawyers wanted them to hear.
When, for example, Steve August, who was assistant general manager of the Boston Red Sox under Dan Duquette when Clemens was on the threshold of free agency, began to tell the story of the team's failure to sign Clemens, Guerrero was quickly on his feet objecting. He objected when lead Clemens attorney Rusty Hardin asked August to describe his study of Clemens' value to the Red Sox.
"Objection, irrelevant," Guerrero repeated at each step in August's story of researching Clemens' performances, comparisons to other pitchers, and projections of what he would be able to do for the team. Guerrero's objections and favorable rulings from U.S. District Judge Reggie Walton made it difficult even for the talented and savvy Hardin to present the story to the jury.
But when jurors were given a chance to present their questions to August, at least two jurors wanted to know the results of August's research and his recommendation. Walton, who had vetoed Hardin's questions on the issues, approved the jurors' questions and allowed August to tell the jury that he thought that Clemens "obviously should be re-signed" and that Clemens was performing at "the highest level of his profession."
It was not the only embarrassing moment for the prosecutors, who stumbled repeatedly over basic baseball lore and language. Guerrero tried to show that Clemens' performance declined in 1994 and 1995 when the number of innings Clemens pitched dropped from 246 in 1992 to only 170 in 1994 and 140 in 1995.
If his innings pitched were dropping, the prosecutors would argue later, Clemens needed a boost and turned to steroids and HGH in 1998.
But incredibly, Guerrero and the prosecution team seemed unaware that both the 1994 and 1995 seasons were shortened by the historic strike that killed the 1994 World Series. Nor were they aware that Clemens was injured in the late and abbreviated spring training of 1995.
As embarrassing as the jurors' questions and the innings fiasco may have been, the real damage to the prosecution came in testimony from former catcher Charlie O'Brien. He said he saw syringes with vitamin B12 lined up and ready to inject into players while Clemens and O'Brien played for the Toronto Blue Jays.
One of the original 15 specific lies charged in the indictment against Clemens (the number was reduced to 13 in a ruling from Walton on Tuesday) is that Clemens lied when he told a committee of the U.S. Congress in a deposition on Feb. 5, 2008, that "four or five needles" containing B12 were "already lined up and ready to go" in the trainer's room after games.
Until O'Brien's testimony that he saw the same thing, the needles charge had been expected to be a strong element of the government's case. It was a charge that did not depend on the veracity of former Clemens trainer Brian McNamee, and trainers and doctors from all four of Clemens' teams had testified that it was something that would never happen.
With O'Brien's testimony on the needles charge, what might have been the basis for a conviction of Clemens now becomes hotly contested.
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