WASHINGTON — Barry Bonds. Guilty on a technicality. At least that’s how much of the public sees it. It’s all that came out of a seven-year investigation into baseball’s home run king.
Lance Armstrong. Not even prosecuted. A two-year, multi-continent investigation brought to a close this year with no charges filed.
Now Roger Clemens. Acquitted on all counts. A five-year investigation ended with the top pitcher of his generation celebrating with family hugs inside the courtroom.
After three expensive failures, the government is done, it seems, with the business of pursuing high-profile cases of drugs-in-sports — with a track record not worth bragging about.
“It was a tremendous waste of federal resources,” said Stanley Brand, a long-time Washington defense attorney who was counsel to the House of Representatives from 1976 to 1983. “The juries that acquitted these people weren’t persuaded by any of this. That’s the man on the street.”
With the government striking out yet again, the policing of drugs in sports now falls to other entities. The U.S. Anti-Doping Agency filed formal accusations last week against Armstrong that could strip the cyclist of his seven Tour de France victories. Armstrong denies any doping.
Clemens, 49, was acquitted Monday on all six counts that he lied to Congress when he denied using performance-enhancing drugs. The government had been pursuing him since 2007, when he was first mentioned in the Mitchell Report on drug use in baseball, and he famously and vehemently disavowed any link to steroids and human growth hormone at a nationally televised hearing in 2008.
Clemens’ lawyers derided the hearing as a “show trial,” and even some members of Congress at the time questioned the validity of the proceedings. But then-President George W. Bush had made the problem of drugs in sports a talking point — even mentioning it in his State of the Union address in 2004. The FBI and Justice Department pursued a perjury case against the former pitcher that eventually involved 93 federal agents and officers. It carried over into the Obama administration, albeit without the head of the Justice Department’s criminal division, who stayed out of the case because he had represented Clemens at the hearing.
Attorney General Eric Holder also took no part in the case because he had worked at a firm representing Clemens.
Brand questioned why the aggressive federal investigators weren’t reined in.
“Where was the adult supervision from the Justice Department to control these individual prosecutors from trying to make hay out of things that didn’t fit the big picture?” he said. “They contorted federal statutes to try to convict these guys.”
In the end, the government could only find one person who could claim firsthand knowledge of Clemens’ using performance-enhancing drugs. He was a flawed witness, something even prosecutors acknowledged. Longtime strength coach Brian McNamee said he injected Clemens with steroids in 1998, 2000 and 2001 and with HGH in 2000, but his story changed over the years and his only physical evidence was kept haphazardly in a beer can.
Yet the case came to trial. The public perception that the government had better things to do was evident during jury selection, when many prospective jurors felt the congressional investigation was a waste of taxpayer money. One man used the word “excessive” to describe the 2008 hearings — and he actually made it onto the final panel of 12 jurors.
The trial that lasted into its 10th week yielded less than 10 hours of deliberation over several days. After the jury foreman uttered “not guilty” for the sixth and final time, Clemens teared up. He and his four sons gathered in the middle of the courtroom, arms interlocked, like football players in a huddle. Then Clemens kissed his wife, Debbie, who was a defense witness in the case.
When Clemens went outside to speak to reporters, he fought hard to hold back tears.
“I put a lot of hard work into that career,” said Clemens, who won 354 games in 24 seasons with the Red Sox, Yankees, Blue Jays and Astros and took home an unprecedented seven Cy Young Awards. “And so again I appreciate my teammates who came in and all the emails and phone calls. Thank y’all very much.”
Clemens was charged with two counts of perjury, three counts of making false statements and one count of obstructing Congress. He did not take questions after his brief statement.
The jury of eight women and four men declined comment through a court spokesman. One juror, however, told the New York Daily News the panel was troubled by the prosecution’s reliance on McNamee. “We just could not believe that they even called their key witness, the drug dealer,” Joyce Robinson-Paul said.
Defense lawyer Rusty Hardin said Tuesday that the jury, in interviews after the verdict, made clear that Clemens didn’t get off on a technicality. “They are convinced he did not use performance-enhancing drugs at any time in his career,” Hardin told CNN.
The U.S. Attorney’s Office for the District of Columbia issued a statement thanking the jury and respecting the judicial process, but it will be hard for prosecutors to put any kind of positive spin on another disappointing Justice Department outcome.
The investigation into Bonds yielded a guilty verdict on only one count of obstruction of justice in a San Francisco court last year, based on an evasive answer he gave about injections. The jury deadlocked on whether Bonds lied to a grand jury when he denied knowingly taking performance-enhancing drugs. He was sentenced to 30 days of house arrest and two years of probation; the sentence was suspended pending an appeal.
The Clemens outcome also comes on the heels of the Justice Department’s failure to gain a conviction in the high-profile corruption trial of former presidential candidate John Edwards.
In addition, the first attempt to try Clemens last year ended in a mistrial when prosecutors played a snippet of video evidence that had previously been ruled inadmissible.
“I think he’s gone through enough,” said former Virginia Rep. Tom Davis, who was the top Republican on the House Government Reform Committee when Clemens testified in 2008. “We did the appropriate thing in referring it over to Justice. But hopefully this will put it behind him. He’s a good citizen.”
The panel’s chairman at the time, Rep. Henry Waxman, D-Calif., also defended the decision to refer the conflicting testimony it heard to the Justice Department, but said, “Whether Mr. Clemens committed perjury is a decision the jury had to make and I respect its decision.”
This may well be the end of an era in which sports stars are prosecuted for getting involved with performance-enhancing drugs, said Ty Cobb, a former coordinator of the Justice Department’s Mid-Atlantic organized crime and drug enforcement task force.
But Cobb, a long-time Washington defense attorney and a distant relative of baseball Hall of Famer Ty Cobb, felt the cases against Bonds and Clemens were warranted. “Lying to Congress is a serious matter. Lying to a grand jury is a serious matter, and the Justice Department should pursue those crimes without fear of losing when they think they occurred,” Cobb said.
Clemens’ lawyers contended that the pitcher’s success resulted from a second-to-none work ethic and an intense workout regimen dating to his high school days. They said that Clemens was indeed injected by McNamee — but the needles contained the vitamin B12 and the anesthetic lidocaine and not performance-enhancing drugs.
Said Hardin: “This trial was the first chance we had to let somebody on his behalf question the accusations and what we knew were the wrong perceptions of him as a person. It got to where people thought arrogance was a man saying, ‘I didn’t do it.’ When a man says he didn’t do it, let’s at least start out giving him the benefit of the doubt.”
As for Clemens, the verdict is unlikely to settle the matter in sports circles as to whether he cheated in the latter stages of a remarkable career that extended well into his 40s — during a period in which performance-enhancing drug use in baseball was thought to be prevalent. Clemens himself told Congress at the 2008 hearing, “No matter what we discuss here today, I’m never going to have my name restored.”
A crucial barometer comes this fall, when his name appears on the Hall of Fame ballot for the first time. His statistics would normally make him a shoo-in for baseball’s greatest honor, but voters have been reluctant to induct premier players — such as Mark McGwire and Rafael Palmeiro — whose careers were tainted by allegations of drug use.
“I hope those in the public who made up their minds before there was a trial will now back up and entertain the possibility of what he has always said — using steroids and HGH is cheating,” Hardin said, “and it was totally contrary to his entire career.”