Bad sports

If there is one universal banality about the perjury trial of Roger Clemens available on the sports pages and talk radio stations today, it’s the following, which is a composite of actual quotes and for which I am providing no link, because the sentiment is ubiquitous:

Did Clemens lie?  A trial will never really answer that question.  Everyone has already formed his opinion on whether Clemens is telling the truth.

Either way, we all know a huge chunk of players took PEDs in the 1990s. That era of the game is forever stained regardless of the outcome of this trial. What is this trial going to accomplish?  Is this really the best use of taxpayer money?

I just hope this trial is a short one, because I’d rather focus on the games being played now.

This being Overlawyered, one might suppose the appropriate point of view here would be along those lines.  Certainly, from a libertarian point of view (when in Rome…), it’s hard to be sympathetic to any investigation or prosecution whose roots are in substance abuse.  If taking steroids was or is a violation of a contractual obligation running from players to Major League Baseball, that would be an entirely private matter.  Evidently it wasn’t, or to the extent that it was, MLB would rather not pick at that scab.  Major League Baseball keeps lawyers busy with other things.

But we all acknowledge that prosecutors do and should, to some extent anyway, concern themselves with the laws that are “on the books,” which brings us back to that Sports Guy trope:  “What difference does it make?  Who cares?  Why are you distracting me with those shiny objects?”

Dumb, dumb, dumb, Sports Guy!

Point One:  It isn’t overlawyering to prosecute people who mislead law enforcement officials or lie under oath.  Yes, people mislead police and prosecutors every day and aren’t prosecuted for it — but famous people often are, because civil disobedience by them can make for a very bad example.  What better example of an example-setter is Bill Clinton, a one-man Chief Executive as sexual revolutionary, who had to turn in his law license to avoid a perjury conviction?

Clemens’s main problem was that he was put, rather unavoidably as Scott Greenfield explained at the time, in a perjury trap:

This was a perjury trap.  Someone was going to walk away under the cloud of perjury, whether it was Clemens or McNamee.  McNamee had the upper hand, having been far more practiced for the performance ahead of him by having had much more time and being far more inclined to be molded for the purpose of giving a good performance.

Celebrities tend to make tough clients, unwilling to bend to the advice of counsel in how to testify and often having counsel too starstruck to tell the client that they aren’t coming off as credible as they think.  Sometimes, they just won’t listen to advice.  These are people who are used to getting their way.  They don’t like being told what to do, especially by people they are paying.  But that makes them arrogant, not deceptive.

There have been casualties in this war on steroids.  Barry Bonds, Marion Jones and Dana Stubblefield, all black, as noted by Doug Berman, opening the political door to the need for a white defendant [to balance out Barry Bonds].  Clemens walked into this void and may very well find himself the perfect target.  Whether he deserves it may never been known, but that doesn’t really matter when you find yourself in the perjury trap.

Clemens might have walked out of the hearing a hero if he had put on a spectacular performance.  But alas, he’s only a baseball player, not an actor.  Or an agent.  It looks like he rolled the dice and lost.  But that doesn’t answer the question of whether he lied.

That’s the way it goes when you’re a high roller.  You play in the Big Leagues, then you play in the Big Leagues.

Point Two:  It doesn’t matter to the real world if the world of sports still “doesn’t care” about Roger Clemens.  It matters because it’s the law even still.  Yes, there are some categories regarding which even the Commissioner of Baseball has no veto over — even the Players’ Association!  This is one of them.

That leads us to Point Three, namely the employment of a favorite cliche of sports “journalism”:  “Can’t they just drop this [fill in] so we can just enjoy da game?”

Hey, Sports Guy:  Enjoy the game.  You don’t have to report about a trial you say doesn’t matter and that you claim to think no one cares about.  But the protests ring hollow because they come in the middle of your reporting about them.  Why can’t you enjoy the game?  Perhaps there is even time for both!

Your call, Sports Guy.  The adults have some business to attend to, however.  Continue, by all means, with games; no need to be distracted by the grownups and the game of real life if that is just too much for the boys of summer.  There are lots of reasons to question why we prosecute people for “victimless crimes,” and while one of them is, indeed, the fact that “it doesn’t matter to anyone else” when they’ve been done already, that argument not only proves too much — it probably is an inaccurate description of the situation here.

That’s because as every teacher who ever had to fail a student for plagiarism knows, when you don’t play by the rules you don’t only “cheat yourself.”  You cheat everyone else in the grade curve.  The consequences and ripple effects of cheating are potentially limitless.  With apologies to Gaylord Perry, in the case of Roger Clemens, how many careers, fortunes and spirits were broken by what may have been an illegally juiced fastball that far outlived the effects ageing has on the rest of us?  We’ll never know.  But only a child could believe that because those effects “already happened,” what may have been illegal or wrongful conduct that caused them “doesn’t matter any more.”  That argument is no more persuasive here, in fact, than it is with crimes that do have victims.  Do we despair of punishment for murder because it will never “bring back” the victim?

The same can be said regarding the perjury, if indeed anyone can suggest that perjury is a victimless crime, allegedly committed to cover it up.  There is a pretty good policy reason for enforcing the requirement that sworn testimony not be false.  In fact, there is nothing worse for the legal system, or more likely to result in the abuses that this blog documents, than for the legal system to shrug off perjured testimony any more than it already does.

Real life, and real justice, do not end with the last out in the ninth, the buzzer or the Hall of Fame.  Or, if the crime is even, as some would have it, with life.

Roger Clemens is, by all reports, in a world of trouble.  He was a big boy when he got himself into it.  And he may be a lot more grown up by the time he gets… out.


  • The problem with the perjury charges is that they are becoming more about remembering past details in the age of ubiquitous, loss-less digital information. A growing number of cases seems to follow this pattern: put a defendant under oath, collect statements about something that happened 2 or 5 years ago, show that these memory don’t match the records, call it perjury and prosecute. In some case the original charges are not even pressed — just the perjury. This is overlaywered.

  • I do not excuse lying under oath. It doesn’t matter how stupid something is, or how much you shouldn’t have to testify or any other excuse, there’s no reason to lie about it. REALLY no reason, what with the 5th and all…

    That said, I’m still wondering why the blank Congress was wasting time with this, and I’ve been complaining about it the whole time.
    (The sadly less universal banality about the case, I’d guess.)

  • This should have been a commentary about a corrupt and abusive justice system seeking any means of criminalizing behavior. Instead it is a puerile rant about Clemens being a “big boy.” In short, a disgrace.

  • Cville, you may be right about a number of perjury cases, but I don’t think what you’ve described applies to the Clemens trial.

    Foxfier, Congress wastes lots of time on lots of things. Wondering about why will only make you blue. On the other hand, is there really so much to wonder about here? Drug policy and baseball’s antitrust exemption are two established topics of Congress’s policy attention. Again, to say merely that they should not be may satisfy our political instincts, but accepting that they are, and that Congress is made up of, well, elected people, should put most of the wonderment about this to rest. They meddle, they grandstand, and hey, they’re Congress.

  • When you said “perjury trap” I thought “a-ha, he’s going to discuss the way that perjury and similar charges are mostly used these days as a ‘We Know You Dunnit’ in high-profile criminal cases, so that the jury can provide a sop to public moral outrage without having to convict the person of a serious charge that they would have to appeal”.

    Instead it’s a weird ramble about how celebrities are so dumb that you shouldn’t put them on the stand.

  • “There have been casualties in this war on steroids. Barry Bonds, Marion Jones and Dana Stubblefield, all black,”

    I’d suggest that Marion Jones is a bad choice for that list; Jones was convicted of perjury, partially for her involvement with BALCO, but also in part for lying about her involvement in a check fraud scheme. I don’t believe there are many folks who would argue that the government shouldn’t go after people who participate in actual fraud.

  • Radley Balko’s case summary: “Roger Clemens goes on trial for lying . . . to politicians. Which is a bit like putting a woman on trial for flashing her breasts at a stripper.”