The adversarial part of the adversarial process is not a bug in the process. It's integral to its truth-findingness. And, in one form or another, it is a necessary and indispensable aspect of any method of truth-finding. It's incorporated in not just law, but medicine, science, business, historical and literary scholarship, anthropology--you name it. You gotta have it in some way.

Even in informal "lay" assessments of belief, people reason (poorly often and not along lines of evidence, but they reason every goddam time). Let's not pretend there is some other way of knowing. Let's not be Theodore Roetke's sloth.

I don't think your getting his point. It isn't that the adversarial nature of the Mitchell report makes it invalid, its that blindly trusting such a document is foolish and not rational. A rational decision involves weighing two sides of a conflict and coming to a conclusion. People who say they trust the Mitchell report and nothing anybody else says matters are not doing that. The Mitchell report would be fine if people would be willing to look beyond it or accept when a part of it is discredited, but nobody's doing that. Its the equivalent of a juror saying "a cop wouldn't lie", and that is a bug in the justice system.

Explain in detail how he wasn't truthful. He claims he injected Pettitte and Knoblauch with HGH, and both have said it was true. Perhaps he got some dates wrong? Perhaps the amount of injections? Go ahead and explain.

Yeah. Perhaps. Dates, numbers of injections. Facts like that. Pettitte has been discussed ad nauseam; McNamee claimed he injected Knoblauch 7-9 times, and then later it turned out -- oops -- that it was 50 times.

EDIT:

So what? Did Stanton not agree that it was true?

"So what" is that I want to be accurate, unlike the journamalists out there. "McNamee gave hGH to Stanton" is simply not the same thing as "McNamee hooked up Radomski and Stanton so that Stanton could get hGH from Radomski," and one should not be substituted for the other.

As for Stanton, I do not know whether he has agreed it was true. When the Mitchell Report came out, Stanton expressly denied it, saying that he didn't even know who Radomski was. The government claimed that Stanton had corroborated McNamee's statements before the grand jury, but produced no evidence of that, so I have no way to verify it.

Yeah. Perhaps. Dates, numbers of injections. Facts like that. Pettitte has been discussed ad nauseam; McNamee claimed he injected Knoblauch 7-9 times, and then later it turned out -- oops -- that it was 50 times.

Okay, but the fact still remains that he claims he injected those players, and it turned out to be true. Keep in mind that I also said this doesn't proven Clemens used steroids, and that he should have been acquitted due to lack of evidence.

Clemens did not say, "In 1999, I told you Debbie did it." That is Elijah Cummings' fabrication. Pettitte said, "Remember when you told me you used hGH"? And Clemens said, "Huh? I never told you that; I told you that my wife did." At no point did Clemens (according to Pettitte) place that assertion about his wife in 1999.

Yes. I wish people would understand this. It's an important point.

The Mitchell report would be fine if people would be willing to look beyond it or accept when a part of it is discredited, but nobody's doing that. Its the equivalent of a juror saying "a cop wouldn't lie", and that is a bug in the justice system.

And this case it's "Well, the sainted George Mitchell saw fit to put it in his report. So it must be true."

Never mind that all of the evidence/witnesses/facts have now been tested in a formal proceeding. I can see weighing the evidence and coming to a different conclusion than the jury, or weighing the evidence and saying "Well, I wouldn't convict either given the BARD standard, but I don't think I need to hold myself to that standard, and I'm confident I can weigh ALL of the evidence, even the evidence that the judge excluded at trial." That's fine, and fair enough.

But what is NOT fair or reasonable is to say "I believe the Mitchell Report. Case closed."

Okay, but the fact still remains that he claims he injected those players, and it turned out to be true.

Yes, within that very narrow band - which must be carefully crafted around the many lies McNamee has told - the fact is that he claims he injected Pettitte and Knoblauch, and those two players said it was true.

But I don't see how your conclusion that therefore it is likely true about Clemens possibly follows. McNamee claimed he injected three players. Two of them said it was true, and one of them put his liberty at stake to say that McNamee is a goddamned liar.

How does that show that we should believe McNamee? One of three players called him a liar on the central claim. That's a horrible percentage. You can't just pretend Clemens didn't counter him. Your sample is three, not two.

Yes. I wish people would understand this. It's an important point.

What's important about whether Clemens confirmed Pettitte's 1999 date for the "first" conversation? McNamee confirms that Pettitte came to him and said Clemens said he used HGH.(*) Clemens confirms the existence, while differing on the substance, of the second conversation. You guys seem to be making a lot of the "inconsistency" in details that are easily misplaced in the mind after the passage of many years and which aren't particularly important to the case. I wouldn't expect two people's recollection of six and seven year old conversations to match up in all particulars.

(*) Assuming, of course, that the McNamee date wasn't indicative of a second Pettitte/Clemens conversation regarding HGH.

How does that show that we should believe McNamee? One of three players called him a liar on the central claim. That's a horrible percentage. You can't just pretend Clemens didn't counter him. Your sample is three, not two.

Well, there's also the fact he told the truth about Stanton as well, but as I've said previously, I agree that it's not legitimate proof that Clemens used steroids. Again, he deserved to be acquitted due to the lack of solid evidence.

Great moments in revisionist history: Francesa just now saying that the Red Sox chose to let Clemens go in the 90s because he "couldn't get anybody out."

Moreover, McNamee's account adds a critical detail to Pettitte's -- that Clemens not only told Pettitte he, Clemens, had used HGH, but that he, Clemens, got it from McNamee.

I'm not sure why that's a "critical detail," but no, it doesn't. I myself was actually imprecise. Here's what McNamee actually said:

A: And all he did was bark at me and say why didn't you tell me about that stuff.
Q: That was Andy Pettitte speaking?
A: Yes. And I said what stuff are you talking about? And I said -- he goes, growth hormone. And I said why. He goes, well, Roger is telling me that he's taking it and you know you get me all this protein and this recovery stuff and why don't I take it.

McNamee was trapped there; he couldn't actually tell Congress that he was giving it to Clemens, because it doesn't match the timeline. According to McNamee,

(a) McNamee convinced Clemens to try hGH in 2000;
(b) the only time he gave Clemens hGH was in 2000,
(c) he had no knowledge of Clemens using hGH at any other time, and
(d) Clemens had explicitly told him that (in contrast to steroids) he didn't like hGH.

So if the conversation was in 1999 (as Pettitte said) then McNamee couldn't have been giving Clemens the hGH, and indeed Clemens couldn't even have been taking it yet. If the conversation was in 2002 (as McNamee claimed), then McNamee couldn't have been giving Clemens the hGH.

Okay, but the fact still remains that he claims he injected those players, and it turned out to be true.

So what?

So what?

So what? He could have easily been telling the truth about Clemens as well, and then again maybe he didn't. Neither you or I will ever know the truth.

Clemens did not say, "In 1999, I told you Debbie did it." That is Elijah Cummings' fabrication. Pettitte said, "Remember when you told me you used hGH"? And Clemens said, "Huh? I never told you that; I told you that my wife did."

Is that exactly what he claims to have said? I thought it was much more noncommittal than that, something like "Huh? We must have been talking about my wife, because she's the only one who used hGH."

Great moments in revisionist history: Francesa just now saying that the Red Sox chose to let Clemens go in the 90s because he "couldn't get anybody out."

That must be why they offered him a 4 year, $24 million contract.

And it must be why Toronto gave him a 3 year, $24 million contract.

That said, Francesa actually hasn't been that bad on the steroids issue. He's not a witch hunter; he doesn't particularly care if players used steroids, and he's bothered that some players were fried but other players (such as the 100 names on the 2003 list) got off without being found out. He doesn't want to condemn some players while not being able to know who all the other players were that were using. And so he just doesn't care very much who was using.

His weakness on this issue is that he _does_ just follow the "oh, there's an accusation, so it must be true" model. So he just Knows Clemens Is Guilty without being conflicted over it. But he doesn't want to keep anyone out of the Hall of Fame over it.

So if the conversation was in 1999 (as Pettitte said) then McNamee couldn't have been giving Clemens the hGH, and indeed Clemens couldn't even have been taking it yet.

Clemens could have told Pettitte in 1999 he was taking HGH that he got from someone other than McNamee. Pettitte rushed to McNamee re Clemens merely assuming that McNamee was the provider. I noted this and the holes in the committee's questioning of Pettitte above.

101:

I think you need to re-read all that I wrote on that subject. I rather agree with your further point but don't see how it contravenes my essential claim at all. We don't just magically get beyond things. An opposition has to be allowed to adversarially test those initial claims and make counter-claims. That is the soul of the adversarial process--and it's everywhere (usually done badly, but that's the process we're chained to).

It isn't that the adversarial nature of the Mitchell report makes it invalid, its that blindly trusting such a document is foolish and not rational.

No. The Mitchell report is not necessarily invalid just because it states a case. That's not the stage where validity or invalidity is determined--or, rather it sure shouldn't as hell be.

The Mitchell report is one-sided. Even if it tried at its hardest to be fair, it's still one-sided. It's not necessarily foolish (that is to be determined), though, and it isn't irrational. It reports claims; that's not irrational. People, even lawyers, confuse the meaning of "rational"--rational is the merest threshold of plausibility--anything almost can be made to seem "rational" in some. What we're after is the best, the most reasonable result, not the mere rational. Rational is not equivalent to the best reasoning according to the evidence. For arrive at that, you need a way to test claims, and that is by an explicit or implicit adversarial process--a process incorporating simulating a crucible of contention. The loosest stage of such a process can be seen in what happens here all the time in discussions. We do it here all the time. I say something--you comment--I try to clarify--you comment. It becomes as clear as it can be--which may still be murky.

What's important about whether Clemens confirmed Pettitte's 1999 date for the "first" conversation?

The fact that everyone agrees that Debbie Clemens hadn't yet used in 1999. So if Clemens' 2005 story was "I told you in 1999 that my wife used," then he was lying in 2005. If, on the other hand, Clemens in 2005 just said, "I told you that my wife used," then he was not necessarily lying in 2005.

McNamee confirms that Pettitte came to him and said Clemens said he used HGH.(*) Clemens confirms the existence, while differing on the substance, of the second conversation. You guys seem to be making a lot of the "inconsistency" in details that are easily misplaced in the mind after the passage of many years and which aren't particularly important to the case. I wouldn't expect two people's recollection of six and seven year old conversations to match up in all particulars.

Pettitte has no reason to lie (about Clemens, that is; he has a reason to lie about himself). If Pettitte's story does not match McNamee's, then Pettitte is not corroborating McNamee. These are not minor inconsistencies like whether they were eating egg salad or tuna salad while having the conversation. If it happened in 1999, and Pettitte is as certain about that fact as about it happening at all, then it does not remotely match McNamee's story. McNamee was not speaking vaguely; he gave a detailed timeline of Clemens' use.

No. The Mitchell report is not necessarily invalid just because it states a case. That's not the stage where validity or invalidity is determined--or, rather it sure shouldn't as hell be.

OK, now you missed my point. I wasn't saying the report is foolish. I was saying that decision making based solely on the report was foolish. My post literally agreed with every thing you said in 116. Re-read what you quoted, I'm not saying anything about the report itself. I specifically say it isn't invalid just because its adversarial (a use which denotes one-sided here). I go on in that quote to say that blindly trusting the Mitchell report is foolish and irrational. Probably would have been better worded as:

The Mitchell report isn't invalid because its adversarial, but refusing to look to outside sources to support or discredit the Mitchell report is not rational or reasonable.

edit: on further thought, those shouldn't even be in the same sentence. The two thoughts have nothing to do with one another.

Is that exactly what he claims to have said? I thought it was much more noncommittal than that, something like "Huh? We must have been talking about my wife, because she's the only one who used hGH."

Nobody claims to be relating an exact quotation from years earlier, so talking about "exactly" isn't useful. This is what Pettitte said at his deposition, which was in 2008, about that 2005 conversation:

And I got Roger and just asked him, I said, dude, what are you going to say if anyone -- if any of the reporters ask you if you had ever used HGH? And he said, you know, he said well, what are you talking about? And I said, well, you had told me you had used HGH. And he said, I never told you that. And I said, you didn't? And he said no. I told you that Debbie used HGH. And that's -- that was the end of the conversation right there.

(Emphasis added.) That's it. Nothing more.

And this case it's "Well, the sainted George Mitchell saw fit to put it in his report. So it must be true."

Never mind that all of the evidence/witnesses/facts have now been tested in a formal proceeding.

This can't be over-emphasized. That report is like a grand jury proceeding. We've had the trial. The formal proceeding. We now can't keep going back to ...but, the grand jury said....

His victory was convincing, but only to those people who heard all the evidence and applied the law to it.

The narrative that everyone wanted to believe about Pettite/Clemens went like this:

1. Pettite was a Clemens acolyte, who sought Clemens' approval for all conditioning decisions;
2. After the 1999 season, Pettite was considering whether to take HGH in order to help recover from an injury;
3. Clemens told Pettite he had used HGH;
4. Clemens' approval was so important to Pettite that he decided to use HGH because Clemens had;
5. Because the conversation with Clemens was so important to Pettite's thought process in making in a major decision (whether to take HGH), Pettite would have listened closely to Clemens, asked follow-up questions as needed and left no room for misundertanding.

The problem with this narrative is that it never lined up with Pettite's testimony:

1. Pettite testified at his Congressional deposition that the conversation with Clemens took place in the 1999 off-season, but Pettite did not use HGH until 2002.
2. Pettite testified at his Congressional deposition that he did not have clear recollection of the conversation with Clemens about HGH and it was not particularly important to him at the time.
3. Pettite used HGH in 2002 and 2004, but testified that he did not discuss it with Clemens at the time.
4. Pettite testified that in 1999, he told McNamee that Clemens had admitted using HGH, and McNamee told Pettite that Clemens should not have said that.

When Pettite's trial testimony did not line up with the media narrative, the press concluded that Pettite had changed his story. But really, all that Pettite did was put a number to how much confusion he had in 2005 (and today) about what Clemens had said in 1999.

I have no doubt that in 1999, Pettite believed that Clemens told him that Clemens had used HGH. But Pettite's testimony was far from air-tight on whether Pettite could have misunderstood what Clemens was saying about HGH back in 1999. And given the enormous problems that McNamee had as a witness, the jury could not get beyond a reasonable doubt.

Having said all of that, I think that a lot of the complaints on this thread about writers who will not vote for Clemens are misplaced. The fact that the jury did not find Clemens guilty does not necessarily mean that Clemens was found not to have used steroids. Rather, it means that the evidence was not sufficient to convince the jurors beyond a reasonable doubt that Clemens used PEDs. It is entirely possible that a rational person could look at the testimony and believe that it was "more likely than not" that Clemens had used PEDs, and simultaneously believe that it had not been proven beyond a reasonable doubt. Given the standard instruction about the meaning of beyond a reasonable doubt -- is it something that you would rely upon without hesitation in making an important decision in your everyday life -- I think the verdict was supportable. But a HOF voter might equally reasonably conclude that it was more likely than not that McNamee was telling the truth.

I put the question back to Ray and the other Clemens-supporters, if an HOF-voter believes after reading the transcript of the trial that it is more likely than not that Clemens used PEDs, but that it had not be proven beyond a reasonable doubt, should that voter ignore that conclusion in deciding whether to vote for Clemens?

So what? He could have easily been telling the truth about Clemens as well, and then again maybe he didn't. Neither you or I will ever know the truth.

This is it. The last refuge of the scoundrel--as to the way of deep-sixing an argument. Either you have a commitment to a process to determine truth or you don't. If you don't, then excuse yourself, for then anything goes. If you do, then you efforts should be directed to making that process the best workable process.

Everything is probabilities. There is no certainty. We do our best to see how close we can come. That's not a bug either. That is the existential predicament. That is the nature of things.

His weakness on this issue is that he _does_ just follow the "oh, there's an accusation, so it must be true" model. So he just Knows Clemens Is Guilty without being conflicted over it. But he doesn't want to keep anyone out of the Hall of Fame over it.

Well that, and that he thinks Pettitte was prevented from delivering evidence that would have convicted Clemens if the judge hadn't been so prejudiced against the prosecution.

Clemens could have told Pettitte in 1999 he was taking HGH that he got from someone other than McNamee.

He could have, but that would directly contradict McNamee, who claims to have introduced hGH to Clemens. (Or Clemens to hGH, if you prefer.) In 2000. For only a short period in 2000.

118:

Good. Thanks for the clarification. That's why we discuss.

Your definition of adversarial I find stops short of its essence. Which is that for a true adversarial process it can't be just one-sided. Each side makes its case, but there are multiple adversarial versions that have to be finally subject to a resolution.

So what? He could have easily been telling the truth about Clemens as well, and then again maybe he didn't. Neither you or I will ever know the truth.

Well, I think the evidence is clear that "easily" and "telling the truth" don't belong in the same sentence pertaining to McNamee. But that snark aside, your comment is entirely non-responsive. Of course he "could have" been telling the truth. But how does the fact that he told the truth (well, sort of, not really), about another player make it more likely that he told the truth about Clemens, which is the argument that was being made?

There is a doctrine in law called "falsus in uno, falsus in omnibus," which you can probably figure out even if you don't know Latin: "false in one, false in all." That is, a jury can decide that someone who lies once is lying in general, and should be disbelieved. There is no similar doctrine called "Veritas in uno, veritas in omnibus" -- that if someone tells the truth once, you can believe everything he says.


EDIT: I also want to note that McNamee's story with respect to Clemens was different than his story with respect to every other ballplayer he named. He said that he gave hGH to Pettitte and Knoblauch. With Clemens, and only with Clemens, did he talk about steroids.

Your definition of adversarial I find stops short of its essence. Which is that for a true adversarial process it can't be just one-sided. Each side makes its case, but there are multiple adversarial versions that have to be finally subject to a resolution.

When I say adversarial means one-sided I'm referring to a document or statement. When referring to a process I agree with your definition that a process cannot be adversarial if its one sided.

The fact that the jury did not find Clemens guilty does not necessarily mean that Clemens was found not to have used steroids.

Nothing, no process, can be so absolutely decisive (alas). That doesn't mean that we should willy-nilly revert to any old process on the ground that, well, one, after all, in its way, can be as good when it comes to truth-finding as any other. That amounts to nothing more than enshrining prejudice and predisposition. Real process is to get beyond that.

Clemens could have told Pettitte in 1999 he was taking HGH that he got from someone other than McNamee.

To me, the most plausible way for all of this to happen would have been that Clemens mentioned in passing at some point that he had obtained hGH, probably from McNamee. Pettitte assumed it was for Clemens' own use, but it was really for Debbie's use. And no one really knows when this conversation (which is probably not the right word to use, since it appears to have been simply a passing remark) took place.

Having said all of that, I think that a lot of the complaints on this thread about writers who will not vote for Clemens are misplaced. The fact that the jury did not find Clemens guilty does not necessarily mean that Clemens was found not to have used steroids. Rather, it means that the evidence was not sufficient to convince the jurors beyond a reasonable doubt that Clemens used PEDs. It is entirely possible that a rational person could look at the testimony and believe that it was "more likely than not" that Clemens had used PEDs, and simultaneously believe that it had not been proven beyond a reasonable doubt. Given the standard instruction about the meaning of beyond a reasonable doubt -- is it something that you would rely upon without hesitation in making an important decision in your everyday life -- I think the verdict was supportable. But a HOF voter might equally reasonably conclude that it was more likely than not that McNamee was telling the truth.

Ephus: your post #122 is eminently reasonable. But:

Yes, the fact that the jury did not find Clemens guilty does not necessarily mean that Clemens was found not to have used steroids. But we know for a fact that the government could not find any other witness, besides McNamee, to say that Clemens used PEDs. (And we know b.a.r.d. that they scoured the four corners of the earth to find such a person.) And we know for a fact that McNamee was clear and unequivocal about the fact that he gave PEDs to Clemens. Unlike with Pettitte, there is no possibility of honest mistake. Thus, either the jury did not believe McNamee, or they nullified. We know for a fact that multiple witnesses, including Clemens' wife and McNamee's, contradicted McNamee. Yes, it is possible that the jury thought, "Well, yeah, McNamee is probably telling the truth, but we can't quite be certain b.a.r.d. that he is, so we vote not guilty." If the evidence were strong enough for that, though, I would have expected a hung jury, not a quick acquittal. What possible "reasonable" basis would a HOF voter have for concluding that it was "more likely than not" that McNamee was telling the truth? The jury is the only group that actually witnessed McNamee every day, on the witness stand, saw his demeanor and saw how he stood up to cross. As well as of the witnesses who contradicted him. If they didn’t believe him sufficiently, isn't it sort of arrogant for people who didn't actually watch the full trial to contend that McNamee should be believed?

The fact that the jury did not find Clemens guilty does not necessarily mean that Clemens was found not to have used steroids.

Nothing, no process, can be so absolutely decisive (alas). That doesn't mean that we should willy-nilly revert to any old process on the ground that, well, one, after all, in its way, can be as good when it comes to truth-finding as any other. That amounts to nothing more than enshrining prejudice and predisposition. Real process is to get beyond that.

Actually, if there was a civil trial on Clemens' libel suit against McNamee, we would have a verdict that required a finding by a preponderance of the evidence of whether Clemens used PEDs. I highly doubt that Clemens is going to puruse that case in New York -- nor should he, given that Clemens has nothing financial to gain from such a trial, and a victory would not help him nearly as much as a defeat would hurt him in public perception.

The difference between "beyond a reasonable doubt" and "more likely than not" is enormous, and the circumstance that an allegation has not been proven beyond a reasonable doubt should not be taken by reasonable people as a proxy for whether the fact is true.

Yes, it is possible that the jury thought, "Well, yeah, McNamee is probably telling the truth, but we can't quite be certain b.a.r.d. that he is, so we vote not guilty." If the evidence were strong enough for that, though, I would have expected a hung jury, not a quick acquittal. What possible "reasonable" basis would a HOF voter have for concluding that it was "more likely than not" that McNamee was telling the truth? The jury is the only group that actually witnessed McNamee every day, on the witness stand, saw his demeanor and saw how he stood up to cross. As well as of the witnesses who contradicted him. If they didn’t believe him sufficiently, isn't it sort of arrogant for people who didn't actually watch the full trial to contend that McNamee should be believed?

All fair questions. I think a reasonable HOF voter could conclude that it was more likely than not that McNamee was telling the truth about injecting Clemens with PEDs based upon McNamee's testimony, his prior consistent statements and the DNA evidence, and that the jurors could have reasonably concluded (unanimously) that McNamee's testimony could not establish anything beyond a reasonable doubt given his clear animus against Clemens after the press conference and his history of changing his story.

Actually, if there was a civil trial on Clemens' libel suit against McNamee, we would have a verdict that required a finding by a preponderance of the evidence of whether Clemens used PEDs. I highly doubt that Clemens is going to puruse that case in New York -- nor should he, given that Clemens has nothing financial to gain from such a trial, and a victory would not help him nearly as much as a defeat would hurt him in public perception.

McNamee is already suing Clemens in NY. That case has been on hold pending the criminal trial. The Daily Emery has been saying that it's going to proceed now. I'm not convinced that it doesn't quietly get dropped, but as of now it's not.

Having said all of that, I think that a lot of the complaints on this thread about writers who will not vote for Clemens are misplaced.

I have three personal complaints that I've seen echoed here in masse that have nothing to do with writers making their own conclusions based on facts. If a writer just doesn't believe Clemens that's one thing but a lot of writers are:

a) simply saying "but the Mitchell Report said he used so that's what I believe"

b) trying to frame the trial as Clemens limitless resources outstripping the poor overworked prosecutors, or

c) ignoring the amount of import they placed on the trial to begin with. The other two have been covered in this thread pretty succinctly, but this one bothers me most. A lot of writers have spend a ton of ink and killed a small rainforest talking about how important this trial was. They can't pretend now that it doesn't matter just because the verdict wasn't the one they wanted.

Yes, the fact that the jury did not find Clemens guilty does not necessarily mean that Clemens was found not to have used steroids. But we know for a fact that the government could not find any other witness, besides McNamee, to say that Clemens used PEDs. (And we know b.a.r.d. that they scoured the four corners of the earth to find such a person.) And we know for a fact that McNamee was clear and unequivocal about the fact that he gave PEDs to Clemens. Unlike with Pettitte, there is no possibility of honest mistake. Thus, either the jury did not believe McNamee, or they nullified. We know for a fact that multiple witnesses, including Clemens' wife and McNamee's, contradicted McNamee. Yes, it is possible that the jury thought, "Well, yeah, McNamee is probably telling the truth, but we can't quite be certain b.a.r.d. that he is, so we vote not guilty." If the evidence were strong enough for that, though, I would have expected a hung jury, not a quick acquittal. What possible "reasonable" basis would a HOF voter have for concluding that it was "more likely than not" that McNamee was telling the truth? The jury is the only group that actually witnessed McNamee every day, on the witness stand, saw his demeanor and saw how he stood up to cross. As well as of the witnesses who contradicted him. If they didn’t believe him sufficiently, isn't it sort of arrogant for people who didn't actually watch the full trial to contend that McNamee should be believed?

No kidding. And bigglou115 nails it further with this:

I have three personal complaints that I've seen echoed here in masse that have nothing to do with writers making their own conclusions based on facts. If a writer just doesn't believe Clemens that's one thing but a lot of writers are:

a) simply saying "but the Mitchell Report said he used so that's what I believe"

b) trying to frame the trial as Clemens limitless resources outstripping the poor overworked prosecutors, or

c) ignoring the amount of import they placed on the trial to begin with. The other two have been covered in this thread pretty succinctly, but this one bothers me most. A lot of writers have spend a ton of ink and killed a small rainforest talking about how important this trial was. They can't pretend now that it doesn't matter just because the verdict wasn't the one they wanted.

Especially since as David point out, this was a very quick and decidedly unambiguous acquittal. No split verdicts or hung jury here, with only one holdout voter blocking a conviction.

Especially since as David point out, this was a very quick and decidedly unambiguous acquittal. No split verdicts or hung jury here, with only one holdout voter blocking a conviction.

What if Clemens loses or settles the civil trial?

Everything is probabilities. There is no certainty. We do our best to see how close we can come. That's not a bug either. That is the existential predicament. That is the nature of things.

Ever read "The Metaphysical Club" by Louis Menand? Good book. I think you'd like it.

We shouldn't lose sight of what's happened here. A man's employer had a law firm prepare what is basically a prosecutor's brief that destroyed the man's reputation (along with the reputations of dozens of other people). In reply to that brief, the man said "I didn't do it." The man was then called before freaking Congress (yes, I know technically he volunteered, but he was sure to be subpoenaed) to say under oath that he didn't do it. And not only did he have to say it under oath, but he had to answer in depth questions about it under oath, first to congressional staffers and then in a nationally televised hearing alongside his accuser, during which he was sandbagged by people in Congress.

After all of this, the DOJ, not satisfied that the man was basically forced to walk into a perjury trap to say "I didn't do it," decided to spend tens of millions of dollars investigating him. They investigated him for years and found basically no other evidence, and so the case against him was hopelessly linked to a serial liar with a sullied past.

Not content that their investigation turned up nothing further, they then proceeded to move to indict him anyway, spending millions more in the process. It was only after this, only after a jury refused to convict on the evidence presented, that the insane government persecution of this man was forced to a halt.

That is some really messed up stuff, and should not have happened. Whether Clemens used steroids or not, everyone involved in this, from the government to the media cheering it on, should be ashamed of themselves. And they should be frequently reminded that they should be ashamed of themselves.

The man was then called before freaking Congress (yes, I know technically he volunteered, but he was sure to be subpoenaed) to say under oath that he didn't do it

What is the evidence for this? From what I read, Clemens insisted that he be given the forum to testify before Congress, and was upset that he was not included in the first hearing (where McGwire said he was not there to talk about the past).

I agree that the case should not have been brought, but once the Mitchell Report was released, Clemens was a volunteer for this circus.

That is some really messed up stuff, and should not have happened. Whether Clemens used steroids or not, everyone involved in this, from the government to the media cheering it on, should be ashamed of themselves.

On the other hand, Clemens and other performers take in a ton of money from the public. They're entertainers, right? Show business is fickle and those who report on show business are fickle.

The point being ... you don't seem to want to hold Clemens and others to the standards of sportsmen, so you can't complain when they get treated like disposable entertainers.

That is some really messed up stuff, and should not have happened. Whether Clemens used steroids or not, everyone involved in this, from the government to the media cheering it on, should be ashamed of themselves.

Ray (or other lawyers),

Can Clemens sue Mitchell or MLB? Or are they protected by just reporting what McNamee claimed?

What is the evidence for this?

The fact that the sham hearing was called, for one thing. Since when can a private citizen request and be granted a Congressional hearing to clear his reputation or challenge someone who is sullying it in a private dispute?

The hearing would have been called regardless. He would have been subpoenaed. I'd have to go back and find the statements from Congress members that made it clear he was going to be subpoenaed -- these occurred in the interim between Clemens initially denying the allegations in the Mitchell Report and him telling reporters in the press conference that he would go to Congress (*) -- but in essence this is a request to prove that water is wet.

(*) The statements were basically "We take very seriously the Mitchell Report, and since Mr. Clemens is challenging it we need to find out if the report can stand up."

The fact that the sham hearing was called, for one thing. Since when can a private citizen request and be granted a Congressional hearing to clear his reputation or challenge someone who is sullying it in a private dispute?

He could have spoke with the Mitchell Report people. Then the report wouldn't have been so "one-sided."

Can Clemens sue Mitchell or MLB? Or are they protected by just reporting what McNamee claimed?

Not really. He'd never, ever be able to prove that MLB acted in other than good faith which is a defense against defamation.

The man was then called before freaking Congress (yes, I know technically he volunteered, but he was sure to be subpoenaed) to say under oath that he didn't do it

What is the evidence for this?

From the 1/5/2008 USA Today:

Clemens and his accuser, his former trainer Brian McNamee, were asked to testify Friday before the House Oversight Committee, chaired by California Democrat Henry Waxman, to supplement the findings in the Mitchell Report.....

Although the committee's minority staff director, David Marin, said, "we always presume that invited witnesses will appear," no one has agreed to show up.....

A committee spokesman told The Washington Post the panel could issue subpoenas if any witnessess decline the invitation.


I cannot find the link, but I seem to remember that Mitchell tried to keep players from having representation in the room if they talked to his committee or wanted to challenge the contents, which is why no one co-operated.

He could have spoke with the Mitchell Report people. Then the report wouldn't have been so "one-sided."

I can't see a real reason for Clemens to talk to the Mitchell report people. They were looking for PED users, and under the edict to provide all evidence of PED use. The best he could have gotten was his statement included in the report, which would have been exactly as useful as waiting to make a statement after the report came out. That's the best case scenario, worst case scenario is he says something that can be misinterpreted and then the Mitchell Report gets to frame his statement first, then he's in a position where he has to defend his reputation and seemingly argue against himself.

I can't see a real reason for Clemens to talk to the Mitchell report people. They were looking for PED users, and under the edict to provide all evidence of PED use. The best he could have gotten was his statement included in the report, which would have been exactly as useful as waiting to make a statement after the report came out. That's the best case scenario, worst case scenario is he says something that can be misinterpreted and then the Mitchell Report gets to frame his statement first, then he's in a position where he has to defend his reputation and seemingly argue against himself.

Sure, but then it's rather frviolous to complain about the Mitchell Report being one-sided or "unfair." Businesses have the authority to investigate themselves and issue reports that discuss employees -- and frequently do; if this were practically any other business and employees who weren't star major leaguers, you likely wouldn't hear a peep out of RDP. (And, yes, the reports often wind up being parts of investigations by the authorities. That happens all the time, too.)

No, a lawsuit against Mitchell or MLB is a non-starter.

---

Thanks for the USA Today quote, Bob. Yes, as I recall the media hounded Clemens asking him if he would testify before Congress, and he was like, "sure," and then Congress "asked" him to testify under threat of subpoena, and then he said "sure."

From this it was spun that Clemens demanded to testify before Congress.

It was demanded of him by reporters. Then "asked" of him by Congress under threat of supoena, and then he appeared, after agreeing the whole time that he would appear.

There was a question at his press conference as to whether he would testify before Congress, and he answered, "Yes, I can cut you off right there - I'm going to Congress and I'm going to tell them anything I know about steroids and HGH, which isn't much."

I base my statement off of Waxman's comment at the start of the hearing that he had planned to issue a report after the deposition testimony from McNamee and Clemens without a public hearing "But others had different views, and I was particularly influenced by the view of Mr. Clemens' attorneys, who thought it would be unfair if the committee issued a report without giving Mr. Clemens the opportunity to testify in public."

Also, from the Jan. 14 2008 Time (before the depositions or hearings):

So why are his superiors, committee chairman Henry Waxman (D-Cailf.) and ranking Republican Tom Davis, of Virginia, calling these players? This move is especially surprising because soon after the release of the report, Congress gave strong signals that it would leave the players alone. Davis told USA Today, "We don't want to turn this into a circus," and that Congress wanted to "move on." He also told a radio interviewer that Clemens would not be called to Capitol Hill. What changed? "Clemens has asked for a public vindication," Davis says now, referring to his recent blitz of denials.

Read more: http://www.time.com/time/nation/article/0,8599,1703513,00.html#ixzz1yGytIcAX

I base my statement off of Waxman's comment at the start of the hearing that he had planned to issue a report after the deposition testimony from McNamee and Clemens without a public hearing "But others had different views, and I was particularly influenced by the view of Mr. Clemens' attorneys, who thought it would be unfair if the committee issued a report without giving Mr. Clemens the opportunity to testify in public."

Uh, yes. Waxman offered to issue a report ***AFTER*** Clemens had already testified under oath in a deposition with Congressional staffers. Clemens had already put himself in legal jeopardy, and so deciding not to appear at the hearing would have done him little good, after already stating that he would appear, and him not appearing would have been spun as "See! He refused to appear."

It was an empty offer by Waxman, and completely disingenuous, and shameful. Waxman could have offered to call the whole thing off before Clemens was put under oath in a deposition. He did not.

I read it as Waxman acceding to Hardin's request that Clemens be allowed to testify publicly. The price of that is a deposition with the Committee staff. That hardly seems unreasonable.

Your position seems to be that no authority, legislative or executive, could ethically or morally subject or expose Clemens to any kind of legal jeopardy with respect to these events. That seems ... extreme.

Ray (or other lawyers),

Can Clemens sue Mitchell or MLB? Or are they protected by just reporting what McNamee claimed?

Well, first he can't sue them because the SOL is long up on the Mitchell Report. Second, the Texas court ruled -- though I think incorrectly -- that McNamee's statements to Mitchell were privileged because they were essentially mandated by prosecutors as part of his plea. If he can't be sued, Mitchell himself/MLB probably can't be sued for the same reason. Moreover, as a public figure, Clemens would have to prove that Mitchell/MLB acted with NYT-malice -- that is, with reckless disregard for whether the statements they published were true. He'd never prevail in this context.

I read it as Waxman acceding to Hardin's request that Clemens be allowed to testify publicly. The price of that is a deposition with the Committee staff. That hardly seems unreasonable.

You read it wrong. The deposition was first. Then Clemens asked to be allowed to testify publicly.

Your position seems to be that no authority, legislative or executive, could ethically or morally subject or expose Clemens to any kind of legal jeopardy with respect to these events. That seems ... extreme.

Your statement is too vague to respond to fully, but I would contend that Congress had no right -- legal or ethical -- to hold this hearing. We'll set aside the earlier steroid hearings, which at least in theory could be justified as investigative in nature for the purpose of making steroid policy. (That argument doesn't pass the laugh test, but if we pretend politicians ever acted in good faith, it could.) But this hearing was solely for the purpose of settling a private dispute between two individuals.

Woody Paige and Bill Plaschke just said on Around the Horn that the trial outcome only reinforces their "no" votes on Clemens.

Gammons, on the other hand, is the first writer I've heard say that the outcome of the trial gives a black eye to the Mitchell Report, because of its dependence on McNamee.

Woody Paige and Bill Plaschke just said on Around the Horn that the trial outcome only reinforces their "no" votes on Clemens.

Would you mind elaborating on that? I refuse to watch an around the horn repeat at 5 to find out, but I'm really curious how that thought process works.

I put the question back to Ray and the other Clemens-supporters, if an HOF-voter believes after reading the transcript of the trial that it is more likely than not that Clemens used PEDs, but that it had not been proven beyond a reasonable doubt, should that voter ignore that conclusion in deciding whether to vote for Clemens?

The number of voters who will be "reading the transcript of the trial" is vanishingly small. Just as many BBWAA voters would send their daughters to a McNamee pool party.

Your question also proposes a level of diligence and coherence that the writers' responses don't match. As quoted in #43, Ken Rosenthal claimed that he applies a first-year penalty on "virtually every player from the steroid era" because their union refused to take action, and yet he's voted for more than half a dozen such players from 2007-2011. Or #57: Mike Vaccaro says he blithely switches his votes back and forth, yes or no, depending on how he's feeling at the time, and calls that process his "conscience." Or #50: Bill Madden says that a guilty verdict would have made it "a whole lot easier" for the writers to vote no, but that street only goes one way since the actual verdict did nothing for Madden but "further muddy" the situation.

This was in context of responding to the back headline in the NYDN for Madden's column.

Plaschke: "There is no way I'm voting for Clemens for the Hall of Fame. If you look at the numbers steroids not only extended his career, but made his career what it was." Plaschke did predict that future voters might vote him in, however.

Paige compared Clemens to Jackson and Rose.

it's kind of amazing that pete rose gets a boost out of this boondoggle

the writers inability to exhibit any level of critical or logical reasoning skills borderlines on the absurd.

look, if you are going to take a position at least take one based on a foundation that can hold up to some level of scrutiny.

tell me you won't vote for clemens because he is a jerk and i get it though i think you are petty

tell me you won't vote for clemens because you think all the numbers for all players from 1993 thru 2004 are phony and i get it though i think you are misguided

but this other stuff? this guy is bad but this guy is ok? that's just nonsense.

Woody Paige and Bill Plaschke just said on Around the Horn that the trial outcome only reinforces their "no" votes on Clemens.

Would you mind elaborating on that? I refuse to watch an around the horn repeat at 5 to find out, but I'm really curious how that thought process works.

Imagine a map where all roads lead to CLEMENS IS GUILTY.

If Clemens numbers are taken at face value, then there is no argument against his being in the HOF. So, if a BBWAA member fails to vote for Clemens, the only explanation is that the voter credited the PED allegations. The trial is the best repository of information about whether Clemens used PEDs. I believe (based upon reading Baumbach's voluminous trial tweets) that it would be reasonable for a voter to conclude that the Feds did not prove their case beyond a reasonable doubt but that it was more likely than not that Clemens used PEDs (based on McNamee's testimony and the limited corroboration from (1) Pettite, (2) prior consistent statements, (3) DNA found on the medical waste and (4) Radomski's testimony and FedEx slip. But the Plaschke comments are ridiculous. If Roger Clemens had retired in 1996, he is a HOF pitcher.

Let's play the writers game, and compare Clemens to game fixers; Judge Landis was pretty adamant about guilty knowledge. I eagerly await the BBWAA's campaign to bar any player/team personnel who knew a teammate was using PEDs from becoming a Hall of Famer, and to force team owners to sell any interests in gambling concerns. Admittedly the latter may already be in effect, I do not know.

mex, mex, mex

there you go with your fancy "logic"

don't need none of that here.

Ever read "The Metaphysical Club" by Louis Menand? Good book. I think you'd like it.

I haven't read it. I was turned off by Menand when he did a long essay in the The New Yorker entirely misrepresenting Steven Pinker's The Blank Slate, which The New YorkerI seems to be doing a lot lately. I know he's a fine writer (based on other essays, mostly in TNY), and I read some of the comments at Amazon. It definitely seems interesting. I think I will give a go.

Would you mind elaborating on that? I refuse to watch an around the horn repeat at 5 to find out, but I'm really curious how that thought process works

You're assuming that Paige and Plaschke are able to form thoughts.

I put the question back to Ray and the other Clemens-supporters, if an HOF-voter believes after reading the transcript of the trial that it is more likely than not that Clemens used PEDs, but that it had not been proven beyond a reasonable doubt, should that voter ignore that conclusion in deciding whether to vote for Clemens?

I didn't respond to this before, but I will now. It needs to be unpacked a bit:

* I don't think that PED use before 2004 should be a factor in HOF voting, so he should ignore it either way. But let's assume otherwise.
* Echoing Gonfalon's point in 157, the odds of any voter doing this are about the same as the odds of Jerry Sandusky being named head of the Boy Scouts of America. But assuming a miracle happened, and a reporter did this, and a reporter honestly came to the conclusion that it was more likely than not that Clemens used steroids, then it would be legitimate to factor that into his vote. But...
* I don't know how anyone could read the transcript of the trial and come to that conclusion honestly.

Given that Pettitte's testimony (that he witnessed nothing at all, but thinks he remembers a single sentence from 1999) is pretty insubstantial, it has very little probative value on a good day. Therefore, in order to conclude that it was more likely than not that Clemens was guilty, one would have to conclude that it was more likely than not that McNamee was telling the truth. I don't understand how any reasonable person could come to that conclusion, factoring in his character and history of dishonesty, his admitted lies with respect to this particular issue (both under oath and otherwise), the lack of logic/internal consistency of his arguments, the fact that he was directly contradicted by other witnesses, and the fact that Pettitte's claim does not actually match McNamee's allegations, I don't see what reasonable person could say, "He's probably telling the truth."

Let's add on the fact that under McNamee's version of events, Clemens had his own steroid supplier, separate than McNamee. And yet, the government couldn't find this person. Is it plausible that Clemens was so sophisticated that he managed to eliminate any paper trail -- phone records, banking records, etc. -- to keep this person from being discovered by an intensive FBI investigation? And this despite the fact that Clemens was otherwise completely casual about his use of PEDs? (According to Pettitte/McNamee, Clemens just spontaneously told Pettitte he had used hGH. According to McNamee, Clemens just came up to him one day -- long before McNamee became his personal trainer -- and said, "Here, I have some steroids but I can't inject myself. Can you do it for me?")

Doesn't it seem more likely that McNamee is lying and this never happened?


EDIT: I see you follow up on this question in #161. One point: How does Radomski help in any way? Radomski didn't witness Clemens use. Radomski didn't hear Clemens admit use. Radomski didn't have any dealings whatsoever with Clemens. The FedEx slip, even if not fabricated, was a shipment of drugs to McNamee, not Clemens, and is outside the time period when McNamee says he was dosing Clemens. It literally has nothing to do with anything.

Is it plausible that Clemens was so sophisticated that he managed to eliminate any paper trail -- phone records, banking records, etc. -- to keep this person from being discovered by an intensive FBI investigation?

And during a time period when nobody was paying attention.

There were canceled checks and such for other players. Not for Clemens. There was no paper trail at all.

But maybe the feds missed it; they only had $50 million or so to spend looking.

But maybe the feds missed it; they only had $50 million or so to spend looking.

That's less than the small market Royals are spending on salary this year!

The number of voters who will be "reading the transcript of the trial" is vanishingly small.

Indeed. And all we need to do to see this is wonder how many of them bothered sitting down for an hour or two to read the Clemens, Pettitte, and McNamee depositions before pontificating on how guilty Clemens was. A very small number, given the wash of them who were apparently fooled into thinking that Pettitte changed his story at trial.

And they're supposed to be sitting down for a couple days going through the trial transcript?

#144 Only a moron would have spoken with Mitchell. Remember he'd established himself as willing to lie for Bud Selig by putting his name to the laughable report on the financial side of baseball. No player could have thought of Mitchell as having any objectivity on the matter.

And the report starts out on a "we hates probable cause testing" note.

The goal of the report was to get full testing without having to bargain it. And it succeeded thanks to some very ... interesting actions from federal prosecutors. Can anybody give another example of prosecutors compelling people getting a plea deal to cooperate with a private entity? I mean I'm sure there are plenty of cases when they've required people to cooperate with an SEC investigation or something similar. But MLB? (every bit of actual evidence -- as opposed to gossip -- comes from people in trouble with the law)

And also, it's not clear to me that the players knew Mitchell was going to be naming names. But even if they did, Mitchell was so starved for high profile players to include -- the feds gave him a boon, otherwise he'd have had next to nothing -- that the best the player could have hoped for was a "Player X denies this." It's unlikely Mitchell was going to leave a player out all together unless the evidence came from Charles Manson phoning in from prison.

I don't know how anyone could read the transcript of the trial and come to that conclusion honestly.

By placing more weight on the DNA evidence and accepting the prosecutors' experts who, even in light of McNamee having opportunity and possible motive to tamper, said that the tissue samples couldn't have been fraudulent b/c of the small number of cells found. I don't know nearly enough to opine on the validity of this testimony, and would need to be much more informed on the subject before I personally adopted this posiition, but I think it enough in good faith for an informed trial observer to conclude it more likely than not that Clemens used PEDs.

I thought the prosecution did a horrendous job of mistrying the case. Knowing what Pettite was going to state -- we didn't know he'd agree to the 50/50 calculation, but knew he would admit to a chance of misunderstanding -- they never should have called him. Knowing McNamee is slime, they should never have had him on direct for 1+ days. Knowing that Clemens had a great WS, they never should have called Cashman to testify that after a poor '99 ALCS he demanded McNamee. A simpler case focusing on the needles would have limited the effectiveness of attacking McNamee's ability to tell the truth from the Hoover Damn. Spending 5x longer on the case in chief than in Sandusky and 2x longer than Edwards, combined with litterally putting two jurors to sleep tells me that a the prosecution blew any chance they had.

All that being said, I never thought there should have been Congressional hearings on the issue, let alone a perjury / obstruction trial and the priumary reason the outcome has no bearing on my hypothetical vote for Cooperstown is that I don't blacklist any pre-2004 player for any performance enhancer, so guilty or not guilty is nothing but an expensive distraction.

If you believe the assertion that McNamee tampered with evidence to frame Clemens, you would have to believe he had planned it as far back as 2005, considering the fact that Corso claims that McNamee told him he saved Syringes he "allegedly" injected Clemens with.

Mr. McNamee had mentioned that Mr. Clemens was one of the athletes that was getting positive results,” said Corso, who also mentioned McNamee’s client Andy Pettitte.

Asked on Tuesday if McNamee had ever mentioned saving medical waste after injecting Clemens with performance-enhancing drugs, Corso said yes, “unfortunately” — a word that signaled Corso’s regret that he ever acquired the information that forced him take the stand in the seven-time Cy Young Award winner’s trial.

“He said he saved some syringes and had thrown them in a beer can and thrown them in a FedEx box,” Corso said, echoing testimony that McNamee gave earlier this month. Prosecutors have already showed the jury evidence that some of the waste bears traces of Clemens’ DNA and steroids.

Corso estimated the conversation about the waste as having occurred some time around 2005. He quoted McNamee vowing that he wasn’t going to get “thrown under the bus” by Clemens.

http://articles.nydailynews.com/2012-05-29/news/31890929_1_roger-clemens-perjury-trial-clemens-with-performance-enhancing-drugs-rusty-hardin

So if one chooses to believe McNamee's intentions were to fabricate evidence and frame Clemens as far back as 2005, one has to wonder why he waited to say anything about it until summer of 2007 when the Feds approached him.

The goal of the report was to get full testing without having to bargain it. And it succeeded thanks to some very ... interesting actions from federal prosecutors. Can anybody give another example of prosecutors compelling people getting a plea deal to cooperate with a private entity? I mean I'm sure there are plenty of cases when they've required people to cooperate with an SEC investigation or something similar. But MLB? (every bit of actual evidence -- as opposed to gossip -- comes from people in trouble with the law)

As I pointed out at the time, Mitchell (obviously) had no subpoena power, and thus could not force players to talk to him. But MLB could have compelled every single non-union baseball employee, from batboy up to general manager and in between, to cooperate fully. And yet there's no evidence that Mitchell talked to a single one who wasn't implicated by the government first.

Actually, according to this article, McNamee apparently mentioned Clemens getting positive results from HGH in 2002.

"Mr. McNamee had mentioned that Mr. Clemens was one of the athletes that was getting positive results from" HGH, said Anthony Corso, recalling a conversation from around 2002.

McNamee, Clemens' former strength and conditioning coach, has testified that he injected Clemens with HGH in 2000, and steroids in 1998, 2000 and 2001. Clemens, a seven-time Cy Young Award winner, is accused of lying to Congress in 2008 when he denied using performance-enhancing drugs. A key piece of evidence in the trial is medical waste from an alleged 2001 steroids injection of Clemens that McNamee said he saved in a beer can and FedEx box.

http://www.cbssports.com/mlb/story/19194215/witness-recalls-mcnamee-saying-he-injected-clemens

FWIW, I know that McNamee "only" claims he personally injected Clemens with HGH in 2000.

I thought the prosecution did a horrendous job of mistrying the case. Knowing what Pettite was going to state -- we didn't know he'd agree to the 50/50 calculation, but knew he would admit to a chance of misunderstanding -- they never should have called him.

The problem with that argument is that -- as you could see from following the baseball columnists and fan commentary over the last four years -- Pettitte's supposed accusation was by far the most compelling and damning piece of evidence they had. People who were reluctant to believe McNamee (or at least willing to give Clemens the benefit of the doubt on that score) lapped up the Pettitte testimony like it was divine revelation. (Hence the hate directed at Pettitte when he supposedly changed his story on the stand -- it was a personal betrayal of them.) The Great and Honorable Pettitte had no reason to lie and was such an upstanding guy that his accusation would practically be enough on its own. And, Pettitte presented the only piece of evidence independent of McNamee.

To be sure, none of the above changes the fact that Pettitte was ultimately a poor prosecution witness because he really was equivocal. But the flaw was not putting him on the stand; the flaw was failing to preemptively deal with the uncertainty. All they had to do was, on direct, get him to admit that while there's a possibility he misremembered, he was pretty certain at the time, and that thinking about it now, he was still pretty certain. That would have blunted the effect of his concession on cross. Moreover, even if they had forgotten to do that, they didn't even try to rehabilitate him; even the judge couldn't figure out why not.

Knowing McNamee is slime, they should never have had him on direct for 1+ days.

Again, not sure they had a choice; he was their whole case, slime or not. But I agree that a sharper focus on the needles could only have helped them.

Knowing that Clemens had a great WS, they never should have called Cashman to testify that after a poor '99 ALCS he demanded McNamee.

It was a distraction anyway. As was the whole thing about the Canseco party. WTF did it have to do with the central issue they wanted the jury to focus on, regarding the use of PEDs? Yeah, they might have been able to salvage a consolation guilty verdict (a la Barry) on that triviality, but it shifted attention away from steroids.

They had a very weak case, but they did not make the most of it.

If you believe the assertion that McNamee tampered with evidence to frame Clemens, you would have to believe he had planned it as far back as 2005, considering the fact that Corso claims that McNamee told him he saved Syringes he "allegedly" injected Clemens with.

Asking why a serial liar with a history of evidence tampering would tamper with evidence is a fool's game.

Re the Corso bit, Marko, all you're doing is pointing out evidence that runs through McNamee. Got any evidence that doesn't run through him?

Here's Mike Lupica, writing on December 19, 2007:

If Roger Clemens wants to tell his story, he should tell it to Congress

Roger Clemens said Tuesday that he has never used steroids in his life, no
sir. Clemens also said he will respond more fully to the charges his former
trainer, Brian McNamee, made about him in Sen. George Mitchell's report at
the appropriate time. I know exactly when that appropriate time is. It's
when baseball goes back in front of Congress in January.

If Clemens wants to tell his story, let him tell it there, and then. If
Congress wants to actually be tough instead of just acting tough, let Rep.
Henry Waxman and Rep. Tom Davis start issuing subpoenas all over again, and
let the first one be delivered to Roger Clemens.

Let Clemens tell his version of things and let him tell it under penalty of
perjury. Not behind the closed doors of a grand jury hearing in the BALCO
case. In front of everybody. It would be the perfect setting for him to
start clearing things up, starting with his own name.

...

But if you believe Brian McNamee - and somebody explain how lying with the
feds in the room gets them to give him the game ball? - Clemens sure seemed
to think he needed a pick-me-up back in 1998.

...

Now it comes out that McNamee made a deal with the feds. So why would he do
that and lie to them? Why in the world would McNamee be telling the truth
about Clemens' best friend, Andy Pettitte - the Pettitte who wants us to
believe that not using HGH would have been a violation of the terms of the
Geneva convention - and lie about Clemens to this extent?

...

You can see how pitching out of this will be tougher for Clemens than trying
to pitch his way past the Indians in the playoffs as an old man.

Clemens has already called McNamee "troubled" through his lawyer. Yesterday
Clemens issued his statement, five days after the Mitchell Report came out.
This one came from his agents, the Hendricks brothers - and haven't they
been busy bumblebees this week, between Clemens and Pettitte - and read this
way in part:

"I want to state clearly and without qualification: I did not take steroids,
human growth hormone, or any other banned substances at any time in my
baseball career or, in fact, my entire life."

Don't tell us. Tell Congress.

it's not clear to me that the players knew Mitchell was going to be naming names

I don't think it was clear to Mitchell that Mitchell was going to be naming names. Didn't he claim that he was more or less forced to by MLB (against his own instincts)? Maybe that's all spin, of course.

By the way, credit where it's due -- McNeal responded politely to my email and edited the paragraph about Pettitte's testimony.

As I pointed out at the time, Mitchell (obviously) had no subpoena power, and thus could not force players to talk to him. But MLB could have compelled every single non-union baseball employee, from batboy up to general manager and in between, to cooperate fully. And yet there's no evidence that Mitchell talked to a single one who wasn't implicated by the government first.

We've been over this before, but Reds trainer Larry Starr spoke with Mitchell's investigators separate four times. None of it was included in the report. Starr's account (including written notes) of having directly warned both the owners and the players' union about steroid problems during the 1988 winter meetings, with MLB promising Starr and the others they intended to do something about it, didn't fit the 2007 narrative.

If you believe the assertion that McNamee tampered with evidence to frame Clemens, you would have to believe he had planned it as far back as 2005, considering the fact that Corso claims that McNamee told him he saved Syringes he "allegedly" injected Clemens with.

[...]

So if one chooses to believe McNamee's intentions were to fabricate evidence and frame Clemens as far back as 2005, one has to wonder why he waited to say anything about it until summer of 2007 when the Feds approached him.

Since this is yet another point about which McNamee's story makes no sense, that's possible. (Except I don't think his intention was to "frame" Clemens, so much as blackmail him. Which explains why he hadn't said anything about it.)

Let's talk about the problems with this story:

Corso estimated the conversation about the waste as having occurred some time around 2005. He quoted McNamee vowing that he wasn’t going to get “thrown under the bus” by Clemens.

1) The timeline is off. Corso says that McNamee was claiming in 2002 that Clemens was using, even though McNamee himself says otherwise. Assuming Corso is telling the truth, McNamee was lying to someone.
2) Corso testified that McNamee only told him about Clemens' use of hGH, not steroids, even though McNamee's story is that Clemens used hGH for a very short time and used steroids for years.
3) The whole "thrown under the bus" thing doesn't make any ####### sense. People keep mindlessly repeating this cliché. But (a) Clemens had no power to throw McNamee under the bus -- though McNamee had the power to throw Clemens under the bus, and in fact did so; and (b) saving the syringes wouldn't prevent it. Here's the only way Clemens could throw McNamee under the bus: Clemens is caught with illegal drugs, and names McNamee as his dealer in exchange for a plea bargain/immunity. (Let's assume this constitutes "throwing McNamee under the bus.") How the #### would McNamee's saving syringes prevent Clemens from doing that, or help McNamee? It would support Clemens' story, and thus serve to help Clemens while hurting McNamee. "If you tell people I'm a drug dealer, I'll... prove it!" Oh -- and if McNamee didn't tell Clemens he had saved the syringes, how was it supposed to deter Clemens from throwing McNamee under the bus anyway?

By the way, why the hell would he tell Corso this in the first place? Let's say you're a drug dealing athletic trainer. Do you brag to one of your clients that you have a famous athlete as a client? Sure: "You should pay me lots of money for this; I train Roger Clemens with this same regimen" is a good marketing tool. On the other hand, do you brag to one of your clients that you have a habit of saving evidence that you can use against your clients? Uh, no? "By the way, if I'm arrested, I'll flip on my clients and provide the government with physical evidence proving their guilt" is not such a good marketing tool.



Oh, and if you're wondering why this didn't help the prosecution so much, it's because Corso's testimony changed:

In response to a question from a jury, read in court by U.S. District Judge Reggie Walton, Corso said McNamee didn't tell him whether the syringes he saved were used on Clemens. "He did not," said Corso.

But during further examination by prosecutor Steven Durham, Corso listened as Durham read a transcript of Corso's April 2010 grand jury testimony in which Corso said, "He (McNamee) said, 'Well, I saved two syringes that I used on Roger.' ''

Corso's response to that: "It helps me see what I said then."

Pressed by defensive attorney Rusty Hardin on what his answer was in court Tuesday about whether the needles were allegedly specific to Clemens, Corso again said, "I do not recall."

It's like the prosecution took the position, "Witness prep is for sissies."

FWIW, I know that McNamee "only" claims he personally injected Clemens with HGH in 2000.

That's misleading phrasing on your part. It's not merely that he claimed he only personally injected Clemens with hGH in 2000, but that he claimed he had no knowledge of any use by Clemens after that.

All you need to conclude that Clemens more likely than not used HGH is to conclude that Pettitte's recollection of and testimony about Clemens telling him that is more likely true than false. All the stuff about McNamee is superfluous. (You obviously wouldn't bring a perjury charge with Pettitte alone, but that's not the question at hand.)

Pettitte put it at 50-50 when led to that number (*); it's really more than that. Whatever ambiguity he ultimately had about his recollection was put there by Clemens and his lawyers. As noted above, he's not the type to be confident in his recollections or fight people trying to manipulate and confuse them. He's a simple and malleable man.

(*) Meaning, best case scenario, Clemens beats the rap by .01%.

By the way, why the hell would he tell Corso this in the first place? Let's say you're a drug dealing athletic trainer. Do you brag to one of your clients that you have a famous athlete as a client? Sure: "You should pay me lots of money for this; I train Roger Clemens with this same regimen"

Well, it does seem like he did brag somewhat about Clemens HGH use in 2002, though as you pointed out the time line was off.

The abscess always seemed like good evidence to me. Why wasn't that brought up at trial?

The abscess always seemed like good evidence to me. Why wasn't that brought up at trial?

It was.

It made the heart grow fonder.

All you need to conclude that Clemens more likely than not used HGH is to conclude that Pettitte's recollection of and testimony about Clemens telling him that is more likely true than false.

Pettitte and Clemens worked out together for years, with Clemens introducing Pettitte to every aspect of his training regimen. In order to believe that Pettitte heard what he initially thought he heard, you have to believe that (a) Clemens was willing to mention in an offhand, casual way that he had used hGH, but (b) Clemens was NOT willing to talk to Pettitte in any detail about his hGH regime, or to be seen using the drug, or anything else.

I think it's much more likely that Pettitte simply misunderstood.

I think it's much more likely that Pettitte simply misunderstood.

Right, but the factual record now is 50-50, with Clemens confirming the existence of a conversation with (*) Pettitte about HGH.

It's fine for you to draw your own inferences and adjust the percentage down, but it's equally fine for others -- including sportswriters -- to do the same and adjust the percentages up. Either we're all tethered to the literal record or we're not.

(*) Or remark to ... doesn't matter.

Pettitte and Clemens worked out together for years, with Clemens introducing Pettitte to every aspect of his training regimen. In order to believe that Pettitte heard what he initially thought he heard, you have to believe that (a) Clemens was willing to mention in an offhand, casual way that he had used hGH, but (b) Clemens was NOT willing to talk to Pettitte in any detail about his hGH regime, or to be seen using the drug, or anything else.

My understanding is that Pettitte did not tell Clemens about using HGH. Why not? Why, if they were such close work-out friends that we assume that Clemens must have told Pettitte, would Pettitte not have mentioned that Pettite had used it as well, at least casually to Clemens since they would have had the same supplier? That never made sense to me.

It's fine for you to draw your own inferences and adjust the percentage down, but it's equally fine for others -- including sportswriters -- to do the same and adjust the percentages up.

They've got a perfect right to do so, but when you're going to "convict" a player of what essentially amounts to a crime against the game, you certainly owe that player more than a 51-49 hunch based on evidence as flimsy as what the government presented, especially when there's absolutely nothing in Clemens' statistical record that shows any sort of correlation between McNamee's claims of when he injected Clemens and any performance enhancement.

McNamee claimed he injected Clemens with Winstrol in 1998, 2000 and 2001. In terms of ERA+, those seasons ranked 7th, 15th and 17th in Clemens' career. I'd love to see some of these writers address that simple fact.

All you need to conclude that Clemens more likely than not used HGH is to conclude that Pettitte's recollection of and testimony about Clemens telling him that is more likely true than false. All the stuff about McNamee is superfluous. (You obviously wouldn't bring a perjury charge with Pettitte alone, but that's not the question at hand.)

Incorrect. You must conclude that (a) Pettitte understood Clemens correctly in the first place, (b) that Clemens was telling him the truth at the time, (c) that Pettitte remembered correctly later, and (d) that Pettitte is telling the truth.

(None of which depend, incidentally, on whether Pettitte was certain or not. As Elizabeth Loftus, among others, has shown, the degree of certainty of one's recollection has little correlation with the accuracy of said recollection.)

Pettitte put it at 50-50 when led to that number (*); it's really more than that. Whatever ambiguity he ultimately had about his recollection was put there by Clemens and his lawyers. As noted above, he's not the type to be confident in his recollections or fight people trying to manipulate and confuse them. He's a simple and malleable man.

You're back to trolling mode, where you repeat something not because you think it's true, but because you're trying to get a rise out of people. This is all made up, part phrenology and part gibberish. Moreover, I would note that Clemens' lawyers had nothing to do with anything; Pettitte expressed uncertainty at his pre-congressional-hearing deposition, at which neither Clemens nor his attorneys were present.

Incorrect. You must conclude that (a) Pettitte understood Clemens correctly in the first place, (b) that Clemens was telling him the truth at the time, (c) that Pettitte remembered correctly later, and (d) that Pettitte is telling the truth.

(a) is subsumed in the 50-50 piece; (b) is simple to conclude -- Clemens would have no reason to lie and no evidence has come to light suggesting that he lied; (c) is subsumed in the 50-50 piece; (d) is confirmed by Clemens not contesting Pettitte's testimony that he mentioned hGH to Pettitte and Pettitte's testimony regarding the same.

You're back to trolling mode, where you repeat something not because you think it's true, but because you're trying to get a rise out of people. This is all made up, part phrenology and part gibberish. Moreover, I would note that Clemens' lawyers had nothing to do with anything; Pettitte expressed uncertainty at his pre-congressional-hearing deposition, at which neither Clemens nor his attorneys were present.

I'm repeating something I believe to be entirely true and haven't said a thing about skull size. Pettitte merely said literally, "I must have misremembered, then" in his congressional testimony, but the context was more along the lines of going to a friend trying to collect on a bet and having the friend say, "No, I picked the Patriots." He testified that Clemens's remark ended the conversation -- which isn't really hard to imagine. A guy throws a line of ######## at you, you aren't really inclined to discuss it further -- especially if his ######## is all huffy and abrupt as it likely was. He really didn't mean "I misremembered," but the government was stuck with it at trial.

Just so it's clear -- Clemens initially manipulated Pettitte into doubt; his lawyers later exploited it.

My understanding is that Pettitte did not tell Clemens about using HGH. Why not? Why, if they were such close work-out friends that we assume that Clemens must have told Pettitte, would Pettitte not have mentioned that Pettite had used it as well, at least casually to Clemens since they would have had the same supplier? That never made sense to me.

Exactly. Moreover, Pettitte not only says that he didn't tell Clemens or consult with him, but that when he himself decided to start using hGH, the fact that Roger Clemens had used never crossed his mind.

That's his testimony. The hGH statement from 1999, about which he can remember nothing other than Clemens saying that he had used hGH, supposedly stuck out so much in his mind that he mentioned it to his wife (who remembered it, years later), and yet when it came time for he himself to consider using, he didn't ask Clemens. He didn't tell Clemens. He didn't even think about the fact that Clemens had used.

My understanding is that Pettitte did not tell Clemens about using HGH. Why not? Why, if they were such close work-out friends that we assume that Clemens must have told Pettitte, would Pettitte not have mentioned that Pettite had used it as well, at least casually to Clemens since they would have had the same supplier? That never made sense to me.

I think there was some noise after the Mitchell Report that the supposed closeness of their relationship was overstated in the press.

McNamee claimed he injected Clemens with Winstrol in 1998, 2000 and 2001. In terms of ERA+, those seasons ranked 7th, 15th and 17th in Clemens' career. I'd love to see some of these writers address that simple fact.

Because evidently nowadaze most sportswriters have no interest in such things as "facts."

Look, before all this I assumed:
1: Clemens took steroids
2: Clemens took HGH
3: He took them to gain a competitive edge

I also thought it was likely that when he took them they were not against the rules of the game (and no Bart G's useless memo did not constitute part of the rules of the game).

I also believe 1, 2 and 3 are true with regard to Bonds, I also believe it is almost certain that Bonds lied under oath about his PEd use.

WRT Clemens, I'm shocked by how LITTLE the feds have on him- both what they got in at trial and what they didn't get in- and they spent years, and they interviewed many many people, and they went through thousands of pages- and it comes down to Brian McNamee said he injected Clemens and Brian McNamee kept used needles for years in a beer can, and Petite once talked with Roger about HGH, or maybe he didn't, who knows, certainly Petitte doesn't...

It all comes back to McNamee, but McNamee has apparently never told the same story twice, not just little details being off either, and a beer can? Did you know that one of his evidence tampering charges when he was with the NYPD involved a beer can and a corpse?

The prosecutors HAD to know that their odds of getting a conviction were roughly 0%- seriously, how could they have brought this case not once, but twice? The only count they had a snowball's chance in hell on was Roger lying about being at a party- And I have to tell you- if they returned a conviction on that count and not guilty on everything else the judge would almost have to toss it as being immaterial.

especially when there's absolutely nothing in Clemens' statistical record that shows any sort of correlation between McNamee's claims of when he injected Clemens and any performance enhancement.

Two things:

1. A player or pitcher could use steroids and not benefit them at all. Perhaps this was the case with Clemens if we assume he only used for three years (if you believe McNamee's allegations). If a writer wants to keep a player out based on the "intent to cheat", I have no problem with that.

2. Other than Barry Bonds, there's no other player out there whose statistics indicate any type of steroid use based on the evidence. If you go strictly by the statistics, the only player that arguably comes out looking "suspect" is Bonds. The argument you put forth applies to any other player linked to steroids, with the arguably the exception of Bonds. Arod is an example of this. Based on what we know about his use, there's no evidence at all that indicates that he benefited from any type of PED he used.

That's his testimony. The hGH statement from 1999, about which he can remember nothing other than Clemens saying that he had used hGH, supposedly stuck out so much in his mind that he mentioned it to his wife (who remembered it, years later), and yet when it came time for he himself to consider using, he didn't ask Clemens. He didn't tell Clemens. He didn't even think about the fact that Clemens had used.

None of that is remotely surprising. Why would Pettitte tell Clemens he was using hGH? He might, sure, but what's surprising about the fact that he didn't?

Just so it's clear -- Clemens initially manipulated Pettitte into doubt; his lawyers later exploited it.

Your usage of the word "manipulated" stems from the conclusion that Clemens is guilty.

If Clemens is innocent, then he didn't "manipulate" Pettitte at all; he merely corrected him.

And actually, the possibility that Clemens is innocent fits here quite well. They both agree they had some short conversation about HGH in 1999 -- so trivial a conversation that, as David points out, Pettitte can literally remember nothing at all about the conversation other than he came away from it thinking that Clemens had told him he had used HGH -- and Clemens said Pettitte misunderstood and Pettitte allowed for the possibility that he had misunderstood. And in fact, Pettitte had operated for years after the 2005 conversation under the assumption that he had misunderstood.

As to analyzing their relationship, their relationship seems either more complex or less complex (I can't figure out which) than a typical relationship between two friends. (*) And so trying to make hay over what A should have told B since the relationship was C is rather fruitless.

(*) It seems from afar that Pettitte looked at Clemens as an authority figure, not as an equal, and so was careful not to step on his toes or challenge him.

so trivial a conversation that, as David points out, Pettitte can literally remember nothing at all about the conversation other than he came away from it thinking that Clemens had told him he had used HGH

That's overstatement: Pettitte can also remember coming away from the conversation and proceeding to tell McNamee about it and tell his wife about it.

It seems from afar that Pettitte looked at Clemens as an authority figure, not as an equal, and so was careful not to step on his toes or challenge him.

Why, yes. Yes, it does. And authority figures sometimes manipulate those who look up to them and, more importantly, often have the power to successfully do so.