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Posted: Monday January 12, 2009 8:21PM; Updated: Monday January 12, 2009 10:49PM
Michael McCann Michael McCann >
SPORTS LAW

Roger Clemens appears to have a grand jury indictment in his future

Story Highlights

Prosecutors are likely to obtain a grand jury indictment against Roger Clemens

They'll then prepare for trial, where they have a 90 percent overall conviction rate

If Clemens is convicted, the former major leaguer would likely receive prison time

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The grand jury will investigate whether Roger Clemens lied last February, when he testified under oath at a deposition and a public House hearing that he never took illegal performance enhancers.
Simon Bruty/SI

The grand jury's investigation into whether Roger Clemens committed perjury and obstruction of justice bodes poorly for Clemens and his legal team.

Here's why:

Federal prosecutors, who enjoy a remarkably high success rate when prosecuting cases (an overall conviction rate of approximately 90 percent), believe they have sufficient evidence to demonstrate that Clemens committed a felony.

Worse yet for Clemens, prosecutors are very likely to obtain an indictment from the grand jury. They merely have to convince a grand jury to find probable cause -- meaning "more likely than not" or "probably" -- that Clemens committed a crime. Keep in mind, "probable cause" is a much lighter burden to establish than "beyond a reasonable doubt," which is required for a conviction. Prosecutors could draw from multiple sources of implicating evidence, including glaring irregularities between Clemens' sworn statements and those contained in the affidavits of other witnesses. In addition, grand jury proceedings are designed in ways that favor the prosecution: prosecutors, and not defense attorneys, question the witnesses, who are selected by the government.

Clemens should not be relieved by the fact that his former counsel, Covington & Burling partner Lanny Breuer, is expected to become the head of the Justice Department's criminal division in President Barack Obama's administration. Should he be nominated and confirmed by the Senate, Breuer will almost certainly recuse himself from any role in the Justice Department's investigation into Clemens. Not only would he be obligated to do so under attorney ethics rules, the Senate may only confirm him if he does.

Should Clemens be indicted, prosecutors and defense would prepare for a trial. Under Title 18 of the U.S. Code, a defendant convicted on a perjury charge may be sentenced to up to five years in prison for each charge. Should he be convicted, Clemens, as a first-time offender of the law, would not likely be subject to a maximum sentence, but he would likely receive prison time.

It is important to not get ahead of ourselves. Clemens has not yet been indicted, let alone convicted. In fact, there are several reasons to believe Clemens would prevail in a trial.

First, Clemens would be able to afford a top legal team, with high-profile expert witnesses. While statistics confirm that prosecutors enjoy tremendous success, those statistics are general ones and not based on prosecutions of remarkably wealthy and famous persons. Along those lines, there is anecdotal evidence suggesting that jurors are often "star-struck" by celebrity defendants, a phenomenon which, if true, would likely bode well for Clemens.

Second, perjury and obstruction of justice are usually difficult crimes to prove. In order to convict Clemens on perjury, prosecutors would not only need to establish that he lied under oath, but also that he knowingly lied. Clemens' counsel could borrow from the playbook of Barry Bonds' counsel and contend that Clemens did not fully understand the questions asked of him, or that even if he used steroids and human growth hormone, he was never told by McNamee that they were banned substances. All Clemens' counsel would need to plant is reasonable doubt in the mind of jurors.

Third, the prosecution's case would be based heavily on the testimony and purported evidence of Brian McNamee, whose credibility has come under fire. Clemens' counsel could also attack the admissibility and veracity of the purportedly incriminating physical evidence, including the DNA evidence. Particularly with top DNA experts on his team, Clemens could likely draw questions into how the DNA was taken, preserved and tested. As shown in the murder trial of O.J. Simpson, skilled counsel can take advantage of even the slightest discrepancy in DNA evidence.

Bottom line: while a grand jury indictment of Clemens is probable, the odds of a criminal conviction remain up in the air.

SI.com legal analyst Michael McCann is a visiting law professor at Boston College Law School, a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

 
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