Lessons from the Roger Clemens case: When the verdict isn’t all that matters

Debra Pickett is president of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training services to law firms and lawyers who deal with the media.  She writes here each week on topics related to law and media.  To learn more, reach her at deb@page2comm.com.

So, the jury said “not guilty.”  But, somehow, in that other forum – the one known as the “court of public opinion,” which always seems to be in session – the verdict is a little less definitive.  How does a defendant move on from a high-profile case that just won’t die?

Pitching great Roger Clemens, and the long saga of accusations involving accusations that he used performance-enhancing drugs, offers a fascinating case study.

Clemens was named in the infamous Mitchell Report as someone who’d taken anabolic steroids.  His former trainer Brian McNamee offered detailed testimony about all the particulars of Clemens’ alleged doping. Testifying before Congress in 2008, Clemens firmly denied these allegations under oath.  Afterwards, congressional leaders refered his case to the Justice Department, based on their suspicion that he had perjured himself before their committee.  Clemens was indicted in August 2010 on six felony counts involving perjury, false statements and obstruction of Congress.  (We’re all going to ignore the obvious jokes about lying to Congress being a crime and the need to prosecute a whole host of folks over there for obstruction. Right?)

Anyway, the point is that these allegations – and the general public’s conviction that they were probably true, even if unproven – hung around.  And around.  There was a mistrial, a whole series of mini-scandals and delays, and, finally, just this week, a verdict: not guilty on all six counts.  Still, for Clemens – and many similarly situated defendants – the assumption of his guilt still shadows him.

Clemens becomes eligible to be elected to the Baseball Hall of Fame this year.  But, despite his sterling career and the not guilty verdict, the pundits seem to agree that Clemens won’t make the cut.  As one sportswriter put it, “Cooperstown’s voters carry a much lower burden of proof” than federal court.

 So, how does Clemens move on?

First, he needs to declare the subject closed.  His post-verdict press conference should stand as the last public comment he’ll make on the whole matter.  This is tougher than it sounds; we all have an impulse to defend ourselves, to keep talking and explaining and persuading.  But, no matter how convincing we think our arguments are, at this point in a scandal they can only serve one purpose: keeping the story alive.  The way to kill the story is to stop offering new comments on it.  A reporter can only do so many one-sided articles before moving on to more fertile (i.e., chatty and quotable) matters.

 Next, he must change the conversation.  If Clemens’ image is to be rehabilitated, we need to see him doing something totally different.  This takes time and it takes real work – we’re not talking about a Kardashian-level of superficial change.  Instead, Clemens should look to find a purpose or a cause or an enterprise that he can pour himself into with the same dedication he once applied to perfecting his fast ball.  And then, when he’s got a real accomplishment to talk about, he should reach out to the media and public to do just that.


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