In 2008 Roger Clemens testified before Congress that he had never used Performance Enhancing Drugs: never took steroids, never ingested HGH. On Tuesday, a jury found Clemens not guilty of all charges related to his alleged false statements before congress. In the aftermath, many people are asking why? Was it a botched prosecution? Did Clemens simply have a superior legal team? Or, was there something else that was at work here.

To be sure, it is hard to predict what a jury will do on any one case and as many experienced lawyers will tell you, as a kind of case is more removed from the heartland of cases from what a court typically hears, the harder it is to predict the result.  In federal court, prosecutors are excellent at prosecuting criminal felonies that range from drug conspiracies to organized crime. The prosecution of a routine felon in possession of a firearm, is the fat fish at the bottom of the barrel. In the governments case against Roger Clemens it had a far more elusive prey.

The most serious problem the government had was one of credible proof–Brian McNamee became the chief witness against Clemens and that, I think, was never intended. McNamee testified that he injected Clemens with steroids and human growth hormone (HGH). He said Clemens was fully aware of the substances he was being injected with and that the drug use was no accident. McNamee was a critical witness for the government, as he was the only person to testify with firsthand knowledge of what Clemens injected into himself.  And, that was the problem, he was the only one. McNamee testimony was even more isolated in front of the jury when Andy Pettitte’s expected damaging testimony never really arrived. Pettitte easily agreed with the defense that he may have misunderstood Clemens and his guess that he was maybe 50% certain of his testimony took any weight off his earlier allegation of Clemens’ drug use. Without Pettitte the case became built around McNamee.

By allowing the case to become McNamee’s word against Clemens flat denial, the government allowed itself to be cast with a Hobson’s choice. Vouch for McNamee–a known pariah–or concede that Clemens was right to vehemently renounce Brian McNamee. Eileen McNamme his wife, became the best witness for the defense. She testified that her husband never mentioned that his injections of performance enhancing drugs had anything to do with Roger Clemens. She also told the jury that their marriage breakup had nothing to do with the Clemens case, as Brian had said, but was due to other legal troubles of his own. To a jury that kind of testimony is doubly damaging. It puts a hole in the prosecutions theory of the case and it raises the defense efforts at the same time.  I would think the jury would feel that Brian McNamee’s credibility was severely damaged at this point. If he was not supported by his wife or independent witnesses, how could they conclude he was right and Clemens wrong?

As prosectors have experienced in their loss here, in the earlier loss against Barry Bond’s and with their inability to get a conviction against John Edwards–scoundrels may be scoundrels and cheats may be cheats, but juries demand real proof beyond a reasonable doubt from their government before they will convict a national figure. Many, and maybe most people, doubt Clemens’ claims that he never used performance enhancing drugs, but a person’s thoughts are very different from a government accusation in the form of an indictment. Perhaps it is the nature of these cases that US Attorney’s offices across the country are indicting on thin proof in the hope that juries will connect the dots of guilt.  But as the Clemens jury has said through their verdict, not guilty is what truth dictates and justice demands.  It is not up to a jury to supply what proof the government is lacking.