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Posted: Monday January 26, 2009 5:18PM; Updated: Monday January 26, 2009 5:18PM
Michael McCann Michael McCann >

Kirk Radomski's new book could help Clemens' perjury defense

Story Highlights

Radomski is an ex-Mets clubhouse employee who sold steroids to major leaguers

His book about his dealings with baseball, entitled Bases Loaded, is out this week

He could be called as a material witness in Roger Clemens' upcoming perjury trial

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Kirk Radomski
Kirk Radomski's book, Bases Loaded, hits stands this week.

Roger Clemens and his legal team may receive much-needed positive news with Tuesday's publication of Kirk Radomski's new book, Bases Loaded: The Inside Story of the Steroid Era in Baseball by the Central Figure in the Mitchell Report.

In the book, Radomski -- a former New York Mets' clubhouse employee who in 2007 pled guilty to federal charges relating to the distribution of anabolic steroids to major league baseball players -- appears to contradict assertions of Clemens' former personal trainer and chief accuser, Brian McNamee, that McNamee never informed Radomski about injecting Clemens with steroids. Although Radomski corroborates McNamee's core contention that Clemens used steroids, Radomski claims that McNamee told him about the injections.

The gist of the inconsistency rests on page 196 of Bases Loaded, where Radomski declares: ". . . [McNamee] told me that in 1998 he'd begun injecting Roger Clemens with Winstrol that Clemens had gotten for himself." However, during a deposition before the House Committee on Oversight and Government Reform last year, McNamee, in response to the question, ". . . you never told [Radomski] that Clemens was using these substances?," answered yes.

In an attempt to reconcile the apparent inconsistency with McNamee's deposition, Radomski, in an interview in Monday's New York Daily News, claims that McNamee told him about the 1998 injections only last year, after McNamee was deposed. Clemens' legal team, however, would seem poised to question the timing of the statements, particularly since Bases Loaded would be an admissible piece of evidence in a perjury trial and Radomski could be called by either the prosecution or by Clemens' lawyers as a material witness.

The inconsistency over specific information shared by McNamee to Radomski may seem to be on the periphery of the central question of whether Clemens used steroids and knowingly lied to Congress, but it offers Clemens' legal team a valuable card in a potential trial in which McNamee would be subject to cross-examination: Why should a jury believe McNamee's recollections over those of Clemens when McNamee's account is, at least in part, contradicted by the published words of his friend Radomski?

Then again, jurors might dismiss potential inconsistencies in dates and other historical facts as relatively immaterial. After all, the inconsistencies seem several steps removed from the legal question of whether Clemens knowingly lied under oath, and jurors recognize that all humans occasionally err while recalling details and minutiae.

Clemens' legal team would likely disagree. Remember, to convict Clemens of perjury, the government would need to leave a jury without any reasonable doubt as to whether Clemens knowingly lied under oath; although jurors might ultimately believe that Clemens more likely than not knowingly lied under oath, any reservations triggered by questions of McNamee's memory and veracity could instill the requisite "reasonable doubt" in those jurors' minds. Such an outcome would lead to Clemens being found not guilty, which in turn would bolster his chances for rehabilitating his reputation in baseball and the public at large.

It should be stressed, however, that prosecutors in a perjury case could draw from multiple sources of implicating evidence, including still-inexplicable inconsistencies between the testimonies of Clemens and his former teammate and close friend Andy Pettitte, who seemingly had no reason to lie (though, to be fair, Clemens' lawyers would likely argue that Pettitte may have unknowingly lied due to mis-recollection). Prosecutors might also offer DNA evidence that links Clemens to syringes, needles and gauze pads preserved by McNamee (and which he turned over to federal prosecutors in January 2008). Then again, such DNA evidence would probably be attacked by Clemens' counsel -- who would likely retain the services of top DNA experts -- as unreliable due to possible tampering or mishandling on the part of McNamee, who preserved the purportedly incriminating materials in his basement, a far cry from a reputable laboratory.

McNamee himself may also find legal significance in Radomski's book. While a majority of congressional members on the House Committee on Oversight and Government Reform clearly believed McNamee's testimony in February 2008, should the Justice Department conclude that McNamee may have knowingly lied to those members, he, like Clemens, could become the subject of a grand jury investigation. In addition, McNamee would run the risk of breaching the proffer agreement he signed with prosecutors in 2006. The agreement called for McNamee to truthfully reveal information to prosecutors about possible illegality stemming from the sale and distribution of steroids in exchange for any disclosures not being used against him. If it is determined that he lied to prosecutors, the agreement would be severed and McNamee could face charges related to his purchase and distribution of illegal steroids and to obstruction of justice. Less meaningful, McNamee's odds of receiving an adverse judgment in Clemens' defamation lawsuit against him would also rise.

The immediate fallout from Radomski's book appears much more limited, however. Clemens remains likely to be indicted by a grand jury, not only because there exists various sources of incriminating evidence, but also because grand jury proceedings are inherently favorable to prosecutors. For instance, instead of needing to convince a jury "beyond a reasonable doubt" that Clemens committed a crime (as would be required in trial), prosecutors need only establish probable cause, which means establishing that Clemens more likely than not committed a crime. Also, prosecutors, and not Clemens' counsel, select the witnesses and question them.

A perjury conviction of Clemens is a different story, however. The difficulty of establishing "beyond a reasonable doubt," Clemens' financial capacity to retain a top legal team and the government's reliance on key witnesses with arguably dubious backgrounds all work in favor of Clemens. Along those lines, despite widespread public belief that Clemens used steroids and knowingly -- and some would say bombastically -- lied to Congress, the legal system is structured to insulate even the most unpopular and disbelieved persons from conviction by public opinion. Such a design is a fundamental principle of the presumption of innocence, which Clemens, like every other U.S. citizen, enjoys. legal analyst Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is a former chair of the Association of American Law Schools' Section on Sports and the Law.

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