For Roger Clemens, complex courtroom saga is just beginning
Clemens was arraigned in Washington on Monday and entered a plea of not guilty
Clemens must decide whether he wants a jury trial and if he will testify
U.S. District Judge Reggie B. Walton is regarded as a "tough sentencer"
The long and potentially complicated courtroom saga began for Roger Clemens on Monday afternoon, as Clemens was arraigned in the chambers of U.S. District Judge Reggie B. Walton. The arraignment lacked the drama of Clemens' appearance before Congress in 2008, but nonetheless sets the table for what could become one of the most closely followed sports trials in U.S. history.
During the arraignment, Clemens was formally informed of the charges against him and was provided an opportunity to enter a plea. As expected, Clemens stated, "not guilty." Walton then set an April 5 date for choosing a jury. No bail was set, as Clemens, whose alleged crimes of perjury, false statements and obstruction of Congress are non-violent offenses, is not viewed as a danger to the public. He is free to travel, but only in the U.S. Walton told him to check in with the court once every two weeks.
In months ahead, Clemens' legal team and prosecutors will conduct the process of "discovery," whereby evidence is obtained, and in some cases shared between the prosecution and defense. Names of relevant witnesses, police reports, transcripts of recorded statements and laboratory results are likely pieces of discovery. Often the defense seeks more information from the prosecution than it is willing to share, and Walton may have to resolve disagreements as to what is sharable. Should Clemens eventually be convicted, his lawyers could challenge the conviction based on discovery decisions made by Walton that were adverse to Clemens.
In addition to the boundaries of shareable evidence, Walton will likely be asked to determine the admissibility of key pieces of the government's case against Clemens. Expect Clemens' legal team to file motions to exclude the government's evidence, including syringes and other drug paraphernalia stored by Clemens' former personal trainer, Brian McNamee, on grounds that the evidence is more prejudicial than probative. On the other coast, lawyers for Barry Bonds, whose federal perjury trial has been pushed back to March 2011, have enjoyed considerable success in seeking, and obtaining from U.S. District Judge Susan Illston, exclusions of the most damming pieces of evidence. The Bonds's case, however, features an important distinction: While crucial evidence connected to Bonds's former trainer, Greg Anderson, is inadmissible because Anderson, out of loyalty to Bonds, refuses to testify in court, McNamee is Clemens' chief accuser and a lock to testify.
In the months ahead, Clemens' legal team will also consider whether to accept a trial by jury, as is Clemens' right under the Sixth Amendment, or to request a bench trial, which would leave the question of Clemens' guilt or innocence to Walton. Clemens is likely to accept a jury trial, as he could avoid a conviction if just one of 12 jurors does not find guilt beyond a reasonable doubt. That very scenario played out in the trial of former Illinois governor Rod Blagojevich, who earlier this month avoided conviction on 23 of 24 counts of lying to the FBI because one of 12 jurors dissented. On the other hand, if Clemens' legal team believes that jurors are likely going to regard Clemens with the same disfavor expressed by many Americans, a bench trial may become a more viable option.
Another key consideration for Clemens' legal team will be whether the former pitcher testifies in the trial. Clemens is not required to testify, and should he decline, the jury will be instructed to not infer guilt from Clemens' choice. There are practical consequences, however, to a defendant not testifying. If Clemens' case boils down to dismissing various prosecution witnesses as liars or persons with flawed memories, a jury may want to see Clemens himself take the stand, look people in the eye and capably respond to questions raised in cross-examination. Clemens' lawyers, however, may not be comfortable with their client answering carefully-crafted questions asked by seasoned and talented prosecutors. After all, prosecutors do not enjoy a conviction rate of approximately 90 percent by accident; they are often among the best trial lawyers around. Clemens cannot testify unless he is willing to face prosecutors' questions.
Judge Walton, who was nominated to the federal bench in 2001 by president George W. Bush, will play a central role going forward. Walton is no stranger to high-profile cases, and of particular concern to Clemens, he is regarded as a "tough sentencer." In 2007 Walton presided over the trial and conviction of Scooter Libby, the chief of staff to vice president Dick Cheney, for perjury and other charges related to leaking the identity of CIA operative Valerie Plame. Although federal sentencing guidelines recommended that Libby -- who did not take the stand in his trial -- serve 15 to 21 months, Walton, highlighting the severity of the Libby's crimes, sentenced him to 30 months. If the recommended 15-to-21-month timeframe sounds familiar, it is because federal sentencing guidelines recommend the same sentence for Clemens, should he be convicted. Given the high-profile nature of Clemens' case, and given that Clemens allegedly lied before Congress in a widely-watched public forum, Walton may view a Clemens conviction as an opportunity to "send a message" to others who might testify before Congress, and thereby impose a lengthy sentence.
Walton's reputation as a tough sentencer could impact Clemens' calculus in whether to pursue a plea deal with prosecutors. Prior to Walton's gag order, which prevents parties and attorneys in the litigation from speaking publicly about the case, Clemens' lead counsel, Rusty Hardin, claimed that prosecutors offered a plea deal that did not include jail time. While plea deals are often viewed as agreements between prosecutors and defendants, there is an important third party: the sentencing judge. Walton would have to go along with the sentencing recommendation in any plea deal. Sentencing judges are not always compliant. Recall that while U.S. district judge Henry E. Hudson accepted a guilty plea by Michael Vick, Hudson sentenced him to 23 months instead of the 12 to 18 months recommended by prosecutors. In reality, Clemens' best opportunity for a plea deal with prosecutors has probably passed and he is in many ways now at the mercy of Walton.
As noted by a D.C. attorney who has represented high-profile clients before courts and Congress and who is familiar with Major League Baseball investigations, Clemens may be wise to adopt a very different persona from the confident and arguably inflexible person who appeared before Congress in 2008. "Clemens is down in the score right now," said the attorney, who asked not to be identified. "He has to win the courthouse, which is its own unique place, and reestablish the legitimacy of the defense, which has been lost. Clemens also has to appeal to Judge Walton. He has to be polite, respectful and humble, and understand the power and authority of the person with whom he is speaking."
One undetermined dynamic is how Clemens' lawyers will perform in the courtroom. Clemens continues to be represented by Hardin, who has achieved considerable success as a trial lawyer in Texas, and he recently added to his legal team Michael Attanasio, a highly-regarded, San Diego-based attorney who advised former San Diego Padres general manager Kevin Towers during former U.S. Senator George Mitchell's steroid investigation.
Still, a number of attorneys remain perplexed by the logic of Clemens to seek a public Congressional hearing to repudiate allegations found in the Mitchell Report and then to testify without obtaining immunity, which would have precluded the charges he now faces. According to the attorney mentioned above, "The decision to have Clemens actually ask to testify before Congress, and then to testify without immunity, was idiotic. No good lawyer would have agreed to that without first obtaining immunity for the witness. That kind of decision-making doesn't bode well for Clemens in this trial. Even if Clemens insisted on testifying, a lawyer is useless if he or she only goes along with the client's wishes."
Michael McCann is a law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also teaches a sports law reading group at Yale Law School.