Posted by: mdegeorge | July 15, 2011

Enough is enough for steroid litigation … again

They say part of being a true friend is helping those around you know when to say, “when”.

Well federal government, consider me your best friend ever. Because when it comes to multi-million dollar legal goose chases of professional athletes, it’s time to say when. (Incidentally, if you Google “when to say when”, the first news result relates to what I’m about to expound upon. Case closed, right?)

The great execution that wasn’t of Barry Bonds should have been a hint. But now that the federal prosecutors going after Roger Clemens on charges of perjury and obstruction of Congress have been so careless as to force a mistrial on Day 2 of his trial, it’s really time to call up the Roberto Duran videos and say, “No mas.”

Courtesy of Creative Commons.

I mean, it’s not like there are other things to use federal resources on. There’s not a looming debate on raising the nation’s debt ceiling that if not reached could lead to the revaluing of once-pristine American bonds (not Barry) that could undermine the entire basis for an already sluggish and vulnerable economy. And there are no pending issues with education or health care legislation that are terribly pressing, so by all means, let’s continue this asinine dog and pony show.

At least the federal prosecutors saved us the trouble of a protracted court case and them losing by messing up and essentially eliminating themselves. As ESPN’s Lester Munson reports, federal prosecutors Steven Durham and Daniel Butler played a video that not once, but twice, alluded to a conversation between pivotal witness Andy Pettitte and his wife, Laura, which the prosecutors had sought to use as verification of the case against Clemens. The conversation and any mention of it was thrown out as inadmissible hearsay in pretrial motions by Judge Reggie Walton; with multiple references made before the jury, an angry Walton “halt[ed] the video even before Clemens’ attorney Rusty Hardin objected” and had little choice but to concur with Hardin’s request for a mistrial.

Now the government has to regroup and essentially prove that the mistake was not “intentional and egregious” to cite a legal statute from 1982 presented by Robert Mintz to Bloomberg, a former federal prosecutor and current private practice attorney. That means proving that the prosecution team was so overstaffed as to lack the resources to detect and edit the error from the videotape. The motions to establish the good faith nature of the blunder, to be filed by Aug. 19, would then permit them to enter the discussion of whether a retrial violates the constitutional prohibition against double jeopardy and if this aborted trial constituted sufficient jeopardy to Clemens before the law to prevent the government a shot.

So let’s review. Federal prosecutors either intentionally pushed the envelope on this attempt at shooting down Pettitte’s credibility – which would have been one of their biggest challenges had the trial not been so abruptly adjourned – or made a mistake which Jack McCoy would have caught. (Heck, after so many years, Sam Waterston might have known that’s a no-no).

The dividing line here, unsurprisingly, is quite blurry. According to Munson, “It will be a tough sell,” adding that an accident of this magnitude seems “implausible.” Bloomberg expert Mintz, however, believes, “It’s hard to imagine this was done intentionally.”

While this issues gets duked out in court, the facts here remain. Between Bonds and Clemens, juries have found the players guilty of one of 10 counts, with nine being deemed mistrials and hearings to determine the viability of retrial – Bonds’ decision is in the hands of the prosecution, Clemens’ in the hands of the judicial – in the offing.

We get the devotion to an issue. But the government is so far in that it can’t just leave and save face. They’re at the point where they may feel like they need to be defeated in the courtroom so they can at least say, “hey, we tried.”

From the sports perspective, enough is already more than enough. There’s nothing prove, which is good since the government has really yet to prove anything. Fans have made their decisions as to who’s guilty and who’s innocent. (Here’s a hint: It’s everyone. Give you one guess as to who we think are liars, too…) No jury of our peers sequestered in a courtroom or federal magistrate who can quote legal precedent is going to change that. There are feelings of profound betrayal and disappointment that steer our verdicts, ones that are unsurprisingly impervious to logic and court filings. The only way that might have changed was through blockbuster decisions that would land people in jail for real time, the 10 to 30 years those Clemens prosecutors were after.

The most tangible institution we have to guide us, the Baseball Hall of Fame, is far from reconciliation with anyone connected to the steroid era. We’re ready to move on, and the indecisiveness of juries and incompetence or imprudence or whatever you want to call it of prosecutors is only pushing further in that direction. It’s ironic that the solution to the problem is turning a blind eye and moving on, something that appears to have been a systemic approach by Major League Baseball that exacerbated this predicament.

Call it quits, take your lumps and reapportion a few million dollars in the process. There’s real baseball to occupy us now. Leave the steroid questions to the two weeks a year that HOF voting is conducted and the electees are announced.

Baseball is ready to move on. I hope the government follows suit.


  1. Very well written post but I’m not sure I agree. On the one hand, they have Clemens appearing to have possibly perjured. However, on the other, you have a lot of taxpayer money that could be used otherwise. It’s going to be interesting to see what the prosecution does and how the whole situation unfolds. Personally, I think Clemens deserves to be punished to the full extent of the law but that’s just me. Also, you think you could check out my blog cuz I really want to know what you have to say

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