The road from here (cont.)
Posted: Wednesday February 20, 2008 5:18PM; Updated: Wednesday February 20, 2008 5:18PM
5) What is the relationship between the committee, the Justice Department and indictments?
The committee cannot indict Clemens or directly seek an indictment of Clemens. It can, however, ask the Justice Department to investigate whether Clemens made knowingly false statements to the committee while under oath and also, possibly, while not under oath (the latter of which would risk violating Title 18 of the U.S. Code (Section 1001), which is the subject of the Justice Department's investigation of Astros shortstop Miguel Tejada). The request would come in the form of a letter, addressed to U.S. Attorney General Michael Mukasey, and co-signed by Waxman and Davis. The letter would provide background on Clemens' involvement in the hearing and also indicate the specific instances in which Clemens is believed to have lied. The letter, however, would not likely accuse Clemens of lying, but rather indicate that further investigation is warranted. McNamee, of course, could also be the subject of such a letter.
If the Justice Department agreed to the investigation -- and it almost certainly would -- and found sufficiently damming evidence against Clemens, it would then pursue a grand jury indictment, most likely for perjury and obstruction of justice. A referral by the committee that contains findings adverse to Clemens would, of course, make an indictment more likely.
6) Give us your best prediction: will Clemens be indicted?
Chances are, yes, he will eventually be indicted for perjury and possibly obstruction of justice.
Most significant, there are compelling reasons to believe that Clemens lied repeatedly while under oath. They include contradictions of statements contained in Andy Pettitte's affidavit, his curious, almost unbelievable description of his reaction to learning that his wife received HGH shots from McNamee and the confirmed accuracy of McNamee's statements to the Mitchell Report in regards to other players. Though Clemens attempted to mitigate the incriminating evidence, he did so with varying degrees of success, and certainly not to the satisfaction of the American public or to some, if not most, members of the committee, including its chairperson, Waxman.
The relatively low legal threshold of the government obtaining an indictment also works against Clemens. Assuming the Justice Department sought a grand jury indictment against Clemens, it would only have to convince a grand jury to find probable cause -- meaning "more likely than not" -- that Clemens committed perjury and obstruction of justice. Not only does "probable cause" pale in comparison to the burden of "beyond a reasonable doubt" for a conviction, but in the view of some legal commentators, grand jury proceedings are designed to help the government's case: The prosecutor determines which witnesses appear and whether any receive immunity, the prosecutor conducts the questioning of the witnesses, and a defendant may not even have his counsel present.
Keep in mind, however, much can happen between now and a prospective grand jury indictment. If the committee or the Justice Department establishes, for instance, that McNamee lied about Clemens attending Jose Canseco's barbeque, McNamee's other allegations about Clemens would draw heightened skepticism. On the other hand, if physical evidence emerges that implicates Clemens, such as further corroboration of Dr. Mark Murphy's study (as introduced by Congressman Stephen Lynch), Clemens would be worse off.
7) If, as you predict, Clemens is indicted, will he be convicted?
We are many steps removed from being able to answer that question with any real confidence. Still, there are preliminary reasons to suspect that Clemens would not be convicted of perjury.
Most beneficial to Clemens is that the burden of "beyond a reasonable doubt" is the highest of burdens in law and often proves difficult to satisfy, particularly since the government would have to prove that Clemens knowingly lied under oath, instead of Clemens needing to prove that he told the truth. "Reasonable doubt" can refer to any doubt that would lead a reasonable person to hesitate before finding someone guilty. In other words, a juror could be "nearly" convinced of Clemens' guilt, but his or her slight reservation would likely lead to Clemens' acquittal. Based on what we know, and assuming the evidence remains as is, Clemens' legal team would seem to be able to offer various forms of doubt.
For one, they could argue that the government has no physical evidence corroborating or repudiating anyone's testimony. To be sure, the government could try to introduce McNamee's syringes and other materials purporting to contain Clemens' DNA, but they are riddled with questions and would not be admissible if a judge deemed that their prejudice to Clemens would outweigh their probative value. In addition, despite the power of the subpoena, the committee did not offer damming physical evidence against Clemens, which leads to the inference that there is none. To his credit, Lynch sought and obtained expert advice from an independent physician to evaluate Clemens' buttocks injury, but Clemens obtained his own competing study; neither of the study's authors, of course, personally examined Clemens. Lastly, Clemens has never failed a drug test, at least not to public knowledge.
Clemens also benefits by the fact that perjury is very hard to establish. Though commonly assumed to mean "did the person lie under oath?" it actually proves more complex. In a hypothetical perjury case against Clemens, the government would have to prove that he knowingly and unequivocally lied under oath about a material matter and in response to a clearly-worded question. Common defenses include misunderstanding the question or the context in which it was raised, or unknowingly lying.
Here's an example of where Clemens' seemed to lie during the hearing, and yet may have bolstered a defense against perjury: Many commentators have criticized Clemens for failing to explain why he originally told the committee that he never spoke with McNamee about HGH and yet during the hearing admitted that he did so upon learning that his wife purportedly used it. On the surface, it seemed like a clear contradiction -- a lie, in fact. But in his defense, Clemens cited an arguable ambiguity in the line of questioning: He seemed to interpret the original question as in reference only to his alleged use of HGH, meaning that he did not knowingly lie during the hearing. Though the public may not buy the distinction, all he needs is for a jury to infer reasonable doubt from it.
Clemens may also benefit from the preferential treatment professional athletes commonly receive when faced with criminal charges. Even normally serious and objective legal officers can become star-struck. Consider how, when Barry Bonds requested a reduction in family-support payments in 1994, the presiding judge asked Bonds for his autograph. Or how Charles Barkley received a seven-month postponement in a misdemeanor trial in 1998 so that it would not interfere with the Houston Rockets' season. Not only may Clemens likewise gain from his celebrity, but his wealth affords him opportunities to assemble a top legal team and to retain a bevy of expert witnesses.
None of this is to say that Clemens is innocent. It is to say that the government's burden of beyond a reasonable doubt is extremely high, especially in the absence of persuasive physical evidence; perjury is extremely hard to prove; and professional athlete defendants enjoy unfair advantages from their star power and wealth. Given these circumstances and barring new evidence, Clemens, if charged, would seem likely to be found not-guilty.
But notice the difference between innocent, which means that a person did not commit a crime, and not guilty, which means that the government cannot prove that the person committed a crime. Clemens, if indicted and later acquitted, would be not guilty. It would be interesting to watch whether the public and Baseball Hall of Fame voters draw a distinction between the two. It would be a debate, of course, that Clemens watches comfortably from his home and not from prison.
Michael McCann is a law professor at Mississippi College School of Law and Chair of the Association of American Law Schools' Section on Sports and the Law.
2 of 2