I don’t know if Roger Clemens is innocent.
I took some time from my enjoyment of Compliance Week to go watch the Roger Clemens trial.
I haven’t sat in a Courtroom and watched proceedings for a while; a long while. In fact, I think the last time I sat in a Courtroom at all was when I moved my wife’s admission to the Southern District of New York. I was a litigator for 12 years, first in Bronx County Criminal Court as an Assistant District Attorney, and then—with less frequency—as a senior enforcement attorney with the Securities & Exchange Commission.
If I learned one thing during the two hours I watched the prosecution and defense duke it out, it’s this:
it was time for me to stop being a litigator.
During the first 50 or so minutes of my watching, the two sides were arguing—outside the presence of the jury—over the admissibility of a slice of videotape. I don’t know why, but Clemens’ presence on a golf course in early June of—I sh!t you not—1998, is important. Or not. Because here’s the thing: in litigation, even the most minor of points can become the focus of a significant amount of time and attention.
Because what the two sides were arguing about wasn’t videotape of Clemens on the golf course, it was tape of a baseball game where the announcer at some point mentioned—during the broadcast of the game—that he had seen Clemens on the golf course that morning. The announcer was the witness.
The discussion was over the applicability of past recollection recorded, and whether the videotape could come in. The questioning was ridiculous: “do you have any independent memory of whether your statement on that day was credible?” I’m a lawyer, and familiar with the rules of evidence, and I didn’t understand what the heck the lawyer was asking.
The witness was incredible given the circumstances and the convoluted questions he was getting asked. And like a lot of these situations, the potential introduction of the past recollection was short-circuited by the witness finally saying “I remember.” (Whether he actually remembered or not. Sometimes the rules are a little ridiculous.) So he testified that he remembered seeing Clemens on the course on a morning in early June 1998. I call BS.
Anyway, even the defense attorney knew that all this arguing was for nothing: he came over to the people sitting in front of me, and said essentially that the whole thing was a stupid laser-focus on the tiny. Not even the tree (instead of the forest), it’s the spot on the stem on one leaf on one tree.
But that’s litigation. You go from the important to the collateral, to the ultra-meaningless in a heartbeat.
That was most of my time at the trial.
The rest of the time was the testimony of Mike Boddiker, former pitcher. Again, I don’t know the facts of the case—it’s not a trial I’ve been keeping up with—but this guy was good. Only, he was good for both sides. He was friends with Clemens, and talked about what an amazing work ethic he had, and how competitive.
The prosecution’s cross can be summed up with one question: “for someone so incredibly competitive, how far would he go to remain at that level?”
The pictures the defense showed Boddiker, of Clemens pitching over the years, could go both ways, too. Did he maintain his speed and strength because he worked hard, or did he get “help?” Because all Clemens wanted, according to Boddiker, was to be like his hero, Nolan Ryan. Better than his hero.
Plus, Boddiker testified that he saw Clemens get a B12 shot. I don’t know what the story is there. But I loved his answer to whether he ever got B12 shots: “No. I’m scared of needles.”
Intensely boring, the whole thing.
It would be bad enough to be the prosecutor. I can’t even imagine how the second seat prosecutor (or the third, fourth, fifth, and sixth seats) stayed awake. Yes, there were five or six of them at the table. Some of these trials last for months.