I’m not a baseball fan.  Yankees, Mets, Red Sox, who cares.  So the steroid scandal has no particular impact on me, so long as they stay away from the Super Bowl winning Giants locker room.  But the fascination offers an opportunity to discuss perjury and obstruction of justice.

Since I wasn’t in Washington observing Roger the Rocket’s testimony, nor did I watch it on the telly, I have no opinion about how good or bad a job he did testifying.  I know Brian McNamee’s lawyer, Earl Ward, and he’s a good guy.  But Earl’s also a good lawyer, and he’d protect his client (by arguing in support of his credibility) no matter what.

So from  Doug Berman comes this MLB.com article comes this opinion about Clemens’ testimony:

Roger Clemens was unconvincing in his testimony before Congress and may have opened himself up to federal perjury charges, a legal expert told MLB.com on Wednesday.  Katherine Darmer, a former assistant U.S. attorney in New York and an expert on criminal procedure, said that Clemens did not come across as credible and that it would not be surprising to see the former big league hurler experience more legal troubles in days to come. “I thought Roger Clemens did not come across well,” said Darmer, a professor of law at Chapman (Calif.) University. “Coming at it from pretty much an open mind, I just thought he was not credible. He’s obviously got a lot to lose with his denials, but if I were his lawyer or his family, I’d be worried about perjury charges.”

First, the fact that Clemens felt it necessary to testify is understandable.  He’s a public personality whose career is on the line.  If he’s left forever tainted by this scandal, then his career is rendered meaningless.  From a legal standpoint, it was foolish.  But lawyering up and hiding behind an invocation of rights (or technicalities, if you prefer to view rights in that fashion), isn’t going to salvage his reputation.  He had something to prove if his baseball reputation was to be salvaged.

Second, testifying isn’t as easy as everyone thinks.  It’s unnatural.  It requires practice, patience, and an ability to respond in what appears to be a credible fashion.  Anyone who tries cases knows a simple truth:  A witness can testify truthfully and look like crap.  A witness can lie through his teeth and look credible.  Truthfulness and giving the appearance of credibility are two entirely different things.

So now we come to former AUSA, now lawprof, Katherine Darmer’s view.  She says that “Clemens did not come across as credible.”  Since I have no clue whether this is true or not, and have some doubt whether this varies from observer to observer, I will accept her view as accurate.  So my question is, “so what?”

The problem is that we have never figured out a foolproof way of determining which of two conflicting stories is true, or even if both are true as far as the witnesses are concerned.  We look for “hallmarks” of truthfulness, such as consistency and the ability to answer questions in a forthright manner.  But we also know that the hallmarks can go either way, such as consistency as evidence of a practiced, fabricated story that leaves no loose ends.  Truth is often sloppy.  If a witness has constructed a lie, then he would make it clean and perfect.  Why create an imperfect lie?

Responses to questions may come off smooth ahd helpful, or resistant and misdirected.  The former appears more credible, but the latter is often the normal human reaction to questions premised on assumptions with which the witness disagrees.  Normal people answer questions in a way that corrects what is perceived to be the underlying assumptive error in the question.  They try to help by correcting the question, and answering what they perceive to be the true point of the question.  It’s very hard to completely let go of control, and just respond to questions no matter how far off base to the witness’ reality they may be.

But the real problem facing Rocket Roger can be seen quite clearly from Prof. Darmer’s conclusion.  She doesn’t know who is telling the truth.  But she has decided that, based upon his performance, Clemens is at risk of perjury.  Where witnesses conflict, there is an inherent assumption that someone must be lying.  Perjury, intentionally giving false testimony under oath on a material point, is in the wind.  Obstruction of justice (or perjury light) is the fallback.  But if there is a conflict, then someone must pay.

If this were TV, the cameras would now cut to the scene where we see exactly what happened so that we would know the truth, know who was lying and have closure.  But this isn’t TV.  Instead, we are left to the personal observations of people like Prof. Darmer.  Is she right?  Well, yes, that Clemens testimony did not appear credible to her is not subject to dispute.  She tells us this. 

However, giving testimony poorly, inconsistently, resistantly, does not provide an answer to the question.  We are still left with deciding truth on a secondary basis, how well the witness performed.  The nature of conflict, particularly at trial, is that there has to be a winner and loser.  The winner becomes truthful by virtue of being the winner.  And that makes the loser the liar.  Not because he’s a liar, but because he didn’t win.

This can be seen more clearly when two witnesses give good performances on the stand, but offer testimony that is impossible to reconcile.  Independently, each witness’ story sounds great.  Together, they just can’t be.  So who’s lying?  Simple.  The loser.  Ask any defendant who has taken the stand in his own defense, only to be convicted.   Ask about that obstruction of justice enhancement for exercising his constitutional right to testify on his own behalf.  Note the smarmy look on the agent’s face outside the courtroom.  Agents are taught to testify, and tend to be well-practiced.  They usually look awfully good on the stand.  And isn’t that what “truth” is all about? 

People will decide who they believe in this scandal.  Andy Pettitte was smart to stay away and let Clemens be the lightning rod.  Clemens took a huge risk by appearing and answering questions.  But that’s what you do when you are a major league baseball hero.  Did he testify poorly?  Apparently.  Is he a liar.  Possibly.  Will he be indicted for perjury? Potentially.  Is he guilty of perjury?  Who can say he’s guilty of anything other than a poor performance.

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

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

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

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

Update:  Howard Wasserman at PrawfsBlawg  points out in this post the partisan attacks on Clemens, which may well have plenty to do with how credible he appeared.  Darmer never mentioned anything about it being an inquisition.  So maybe credibility is an issue all around?

Also, with all the attention focused on Roger the Rocket, did everybody forget that the Senate voted yesterday to let the government wiretap at will and immunize corporate America for aiding and abetting?  I hope not.  I mean, it’s not baseball, but it still matters.