by Craig Calcaterra @ Hardball Talk
Roger Clemens’ lawyers filed a motion yesterday asking to be allowed to tell the jury just how bad a dude Clemens’ main accuser — Brian McNamee — really is. It came in the form of an opposition to the government’s motion in limine, which is the government’s attempt to keep the jury from hearing about just how bad a dude McNamee is. This is a really, really important motion. I’ll explain why in a second.
But first, the legal setting:
The issue of whether a witnesses’ past bad acts can be mentioned comes up in tons of cases, especially criminal ones. At issue is always the same argument: one side says that just because the witness has been involved in some past shadiness doesn’t mean that what he’s saying isn’t true, so mentioning that shadiness is unfair and could unduly prejudice the jury.
Underlying all of this is the notion that, hey, criminals associate with scumbags, and if every witness’ dirty laundry were aired, it would be really hard to get convictions. Let us put a bad guy on the stand so we can get a worse guy, OK?
The other side says, nope, that past shadiness goes to the witnesses’ credibility, and the jury can’t properly weigh his testimony unless they know who they’re dealing with. Sometimes the past acts are allowed into evidence (in the form of cross examination) sometimes not (the cross examiner is not allowed to say anything). It’s up to the judge.
But while this is a common fight, in the Roger Clemens case it is an extremely critical one. Indeed, the entire case likely turns on it. Why? Because the government’s entire case is based on Brian McNamee, really, and if he is not believed by the jury — if they think he is not credible and/or generally sleazy — it’s virtually certain that Clemens will skate.
So what is it that the government doesn’t want the jury to know about Brian McNamee?
One of them we’ve talked about at length: McNamee was once questioned by police in Florida about a rape allegation. While there were never any charges filed, the police did note in their report that they believed he was lying to them.
That could be highly relevant in terms of McNamee’s credibility — if he’d lie to cops, why wouldn’t he lie to investigators, Congress or this jury? — but because the rape angle is so sensational, any information the jury could use about McNamee’s credibility could conceivably be outweighed by their visceral reaction to the context. That will be a tough call for the judge.
But there are more. In the motion, Clemens’ lawyers make reference to the following:
“… police misconduct at the NYPD, purported substance abuse and addiction, a conviction for driving while intoxicated, indebtedness and collection actions, tax fraud, prescription drug fraud and distribution, loan fraud, and breaking and entering.”
Some of that stuff is clearly out because it’s only possible use is to make McNamee look like a scumbag. Some of it, however, like fraud, could go to the man’s credibility and propensity to lie and/or concoct phony evidence such as syringes stored in soda cans.
The prosecution’s case in chief is currently underway and McNamee will soon take the stand, so the judge is going to have to decide all of this soon. And given how important McNamee is as a witness, when he does, he may very well be deciding Roger Clemens’ legal fate.