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Posted: Tuesday July 8, 2008 3:28PM; Updated: Tuesday July 8, 2008 3:49PM
Michael McCann Michael McCann >
SPORTS LAW

Answering key questions about Clemens' growing legal problems

Story Highlights
  • What legal issues remain for Clemens?
  • An indictment would be a devastating blow to Clemens
  • Clemens' legal problems are likely to remain unresolved for some time to come
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Roger Clemens
Roger Clemens could be tied up in legal matters for the foreseeable future.
AP

SI.com legal analyst Michael McCann has been closely following the Roger Clemens-Brian McNamee story since the release of the Mitchell Report late last year. Last week, in this story's latest legal twist, McNamee's lawyer filed a new motion to dismiss Clemens' defamation suit against him or have it moved to New York. Today McCann answers four key questions about Clemens' growing legal problems and predicts what may become of them.

1) What legal issues remain for Clemens?

Clemens' troubles span the legal spectrum. Of greatest significance he is the target of both an FBI investigation into whether he committed the crimes of perjury and obstruction of justice and an IRS investigation into whether he violated federal tax law. Clemens is also a plaintiff in a defamation lawsuit filed against McNamee and he could eventually face family law repercussions for his alleged bouts of marital infidelity, most notably with country music star Mindy McCready. Clemens' legal team is sure to challenge the Federal Rules of Evidence, with the syringes and bloodied gauze pads that McNamee kept and that purportedly contain Clemens' DNA. Clemens' team will be poised to provoke debate over their admissibility. One might say that if "Roger Clemens and the Law" were a law school course, it would be a must-take in preparation for the bar exam.

2) Where does the FBI's investigation of Clemens stand and where is it going?

The FBI, in conjunction with the Justice Department, has honored the request of U.S. Rep. Henry Waxman, chairman of the House Oversight and Government Reform Committee, and U.S. Rep. Tom Davis, the ranking Republican on the committee, that Clemens be investigated for perjury and obstruction of justice. The FBI's basic inquiry is to assess whether Clemens' physical behavior, financial activities and verifiable statements corroborate or contradict his congressional testimony, and whether any contradictions were knowingly made.

The FBI has already undertaken numerous investigatory steps. Agents have, for instance, examined key physical evidence, including the purportedly incriminating syringes and gauze pads furnished by McNamee and also photos allegedly of Clemens at Jose Canseco's house. They have also contrasted the relevant testimonies of Clemens, McNamee and Andy Pettitte (among others) and interviewed persons believed to be material witnesses. Those witnesses include Shaun Kelley, a Houston-based trainer who once employed Clemens' stepsister and who, in a lie detector test administered by FBI agents, reportedly denied ever furnishing Clemens with steroids or other illegal performance-enhancers, and McCready, who maintained a close, possibly intimate relationship with Clemens for 15 years.

Although the government's investigation remains in progress, the Justice Department will likely decide in the next several months to seek a grand jury indictment of Clemens. The threshold for obtaining an indictment would be low. Prosecutors would merely have to convince a grand jury to find probable cause -- meaning "more likely than not" or "probably" -- that Clemens knowingly lied under oath. There would be multiple reasons for a grand jury to find probable cause, including blatant inconsistencies between Clemens' sworn statements and those contained in the affidavit of Pettitte, who seemingly had no reason to lie. Aiding the prosecutors' case would be the unique, pro-prosecution dynamics of grand jury proceedings: Prosecutors, and not defense counsel, conduct the questioning of witnesses, who are selected by those same prosecutors.

An indictment would be a devastating blow to Clemens. Depending upon the number of associated charges, he would likely face at least five years in prison if convicted (though judges tend to impose much lighter sentences for first-time offenders, as Clemens would be). At a minimum, Clemens' already sullied reputation would suffer further blemish and he would likely be saddled with hundreds of thousands, if not millions, of dollars in new legal fees. In addition, federal prosecutors enjoy a remarkably high success rate when prosecuting cases, with an overall conviction rate of approximately 90 percent.

Not all would be bleak for Clemens, however. For one, perjury and obstruction of justice are typically more difficult to prove than are most crimes. The government would have the onerous burden of proving beyond a reasonable doubt that Clemens, who to public knowledge has never failed a drug test, knowingly lied under oath when insisting that he never used steroids. Clemens' legal team would likely denigrate the reliability of any incriminating physical evidence (e.g. McNamee's syringes and gauze pads, which would not be admissible if a judge deemed that their prejudice to Clemens would outweigh their probative value) and claim that any testimonial inconsistencies between Clemens and other sworn witnesses would not prove, beyond a reasonable doubt, that he lied.

Even if the evidence were to prove that Clemens used steroids and thus lied under oath, his attorneys could still try the route taken by Barry Bonds' counsel: intimate that their client did not knowingly use steroids, perhaps because an intermediary (for Bonds, his trainer Greg Anderson; for Clemens, perhaps McNamee) did not tell him. Clemens' attorneys could also insist that their client misunderstood the questions posed to him while he was under oath. They could assert, for instance, that Clemens assumed that questions concerning whether he spoke with McNamee about Human Growth Hormone ("HGH") were only in reference to his alleged use of HGH and not that of his wife, Debbie Clemens. Put another way, even if Clemens unquestionably lied while under oath, he did not commit perjury so long as there is any reasonable doubt as to whether he knowingly lied.

Keep in mind, too, that Clemens would not be the typical criminal defendant. He would be able to afford a well-credentialed and experienced litigation team, along with top expert witnesses, to complement his existing representation by Rusty Hardin, who, in spite of criticism of his public relations skills and political sense, has enjoyed much success in the courtroom. In addition, there is anecdotal evidence that professional athlete defendants receive preferential treatment, with various legal actors often star struck by their celebrity.

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