While the fate of Roger Clemens isn’t the foremost issue of critical consequence facing society today, it raises issues of sufficient consequence to be worthy of discussion.  And so Doug Berman at Sentencing Law and Policy, pursuing the agenda of racial equality, noted the New York Times’ view that Justice Will Be Served Only if Clemens Isn’t Given a Pass.

I usually find myself in agreement with Doc Berman, whose understanding of sentencing policy dwarfs my own.  But not this time.  In fact, I find it shocking that Doug has bought into the “common wisdom” type approach of commentators who, having watched the hearings, have concluded that the Rocket is a liar.

What we all know now is that someone was lying. And at this juncture, that someone would seem to be Clemens. We’re not talking about razor-thin, “I thought it was flaxseed oil” types of lies before a federal grand jury, which is what Barry Bonds stands accused of. We’re talking about potentially whopping lies before Congress, before the world….

This was  also the view of former AUSA, now lawprof, Katherine Darmer.  Karl Keys of Capital Defense Weekly, on the other hand, thought that Clemens was quite credible and took issue with McNamee.  So is it a tie, or does the side with the most votes win?  Is the fact that most commentators have decided that Clemens looked worse than McNamee conclusive?

Whether Clemens lied or told the truth or told the truth as he believed it to be, and whether Clemens appeared credible, appeared incredible, or was an ill-prepared, or just generally lousy witness, is not the subject of popular vote.

While Doug’s point, that there can be no racial disparity in the prosecution of athletes for use of steroids, is certainly valid, it is premature to make Clemens the poster boy.  I don’t care if every person who watched the hearings has decided that he gave the worst performance.  Performances do not prove the truth or falsity of his testimony.  Doug should know this, and should be circumspect in finding Clemens to the liar.

There may well be nothing more to this than “he said, he said” in the absence of evidence.  But don’t rush to judgment because of who you think put on a better show.  Yes, courts do this every day.  Judge Judy, after about 3 seconds, screams at litigants that they are liars.  But she’s a TV judge putting on a show to appeal to people who have the opportunity watch daytime television.  This is not a viable substitute for reality.  Not even Judge Judy has magic powers to know who is telling the truth.

When someone with as much credibility as Doug Berman argues that Clemens must pay, like others who are black, he jumps to conclusions that are as yet unwarranted and inappropriate.  It may be said that he isn’t convicting Clemens, but merely suggesting that Clemens be investigated to determine “if” he perjured himself.

But none of this means a thing unless the Department of Justice investigates Clemens.  On the surface, there seems to be little choice but to do so. What Jones and now Bonds and Clemens have in common is not accusations of illegal use of steroids but of lying to representatives of the federal government: Jones to federal agents, Bonds to a grand jury and Clemens to members of Congress.

This smacks of beginning the path to a foregone conclusion.  To urge an “investigation” is to believe that there is wrongdoing.  If it was not directed to Clemens’ guilt, it would be to urge a broader investigation, without regard to race.  It is directed at Clemens because of the fear that he, being white, will escape scrutiny.

I agree wholeheartedly that no one should be subject to investigation, prosecution and conviction because of their race,  That includes Barry Bond.  It includes Marion Jones.  It also includes Roger Clemens.  Let’s not let the “common wisdom” that we can somehow tell, in the absence of extrinsic evidence, who is lying based upon who gave the best performance stop our thoughtfulness in its tracks and lead us down the path of righteous condemnation in the name of equality.  Better we be fair to all than unfair to all.

Edit:  Note  the comment to Doug’s post by Scott Henson of Grits for Breakfast fame.  Same idea, only Scott managed to say it in 749 fewer words.