Posted: Monday July 4, 2011 10:15PM ; Updated: Monday July 4, 2011 11:07PM
Michael McCann
Michael McCann>SPORTS LAW

What to know about Clemens' trial

Story Highlights

Roger Clemens' perjury trial starts Wednesday and is likely to last 4 to 6 weeks

If convicted on all six charges, Clemens faces a jail sentence of 15 to 21 months

Clemens is unlikely to testify, but Brian McNamee and Andy Pettitte could be key

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Roger Clemens
If he is convicted on all six charges, Roger Clemens could face 15 to 21 months in prison.
AP

Jury selection will begin on Wednesday in U.S. v. Roger Clemens, a trial that could close the door on the steroid era in baseball and lead to arguably the best pitcher in the last 30 years being sentenced to prison. Michael McCann breaks down what to expect.

1) What is this case fundamentally about?

The case centers on whether Clemens knowingly lied before Congress in February 2008 when he stated, without equivocation, that he never used steroids, Human Growth Hormone (HGH) or any other illegal performance-enhancing drugs (PEDs).

Led by Assistant U.S. Attorneys Daniel Butler and Steven Durham (who prosecuted Miguel Tejada for lying to Congress regarding PEDs and obtained a misdemeanor guilty plea), prosecutors will maintain that Clemens repeatedly lied. They intend to prove that through a mix of witnesses, including Clemens' former trainer, Brian McNamee, and former teammate, Andy Pettitte, and physical evidence, including syringes and other drug paraphernalia that allegedly connect Clemens' DNA to substances he denies using.

Clemens' defense will focus on credibility and recollection issues of the witnesses, such as whether McNamee's checkered past should lead jurors to question his truthfulness or whether Pettitte may have simply misheard Clemens. The defense will also portray the physical evidence -- much of which was provided by McNamee -- as unreliable and possibly tampered.

Roger Clemens' perjury trial set to begin Wednesday

Prosecutors will need to convince a jury of 12, beyond any reasonable doubt, that Clemens is guilty. While their burden is high, federal prosecutors win about 90 percent of their trials. On the other hand, Clemens has financial resources to wage an expensive and thorough defense that defendants typically do not enjoy.

The trial is expected to last four to six weeks and will be heard before U.S. District Judge Reggie Walton, who in 2007 presided over the trial of Vice President Dick Cheney's former chief of staff, Scooter Libby. After opening statements from each side, the prosecution will present its case first, and then Clemens' attorneys, most notably Rusty Hardin and Michael Attanasio, will present his case. If, after the prosecution presents, Clemens and his attorneys feel confident that they will obtain a not guilty verdict, they may condense their defense, which would result in a shorter trial.

2) What charges does Clemens face?

Clemens faces six charges. The first charge is for obstructing Congress in its investigation into the accuracy of the Mitchell Report as it related to Clemens' purported use of PEDs. According to prosecutors, Clemens knowingly made 15 false statements while under oath. Most of the statements relate to Clemens' denials that he used HGH and PEDs, while other statements concern recollections of fact, such as his insistence that, contrary to McNamee's contention, he was not at Jose Canseco's house on or about June 9, 1998.

Charges 2, 3 and 4 concern Clemens' purportedly false statements to Congressional staff about his alleged use of HGH, steroids and Vitamin B12. As with Barry Bonds, who faced a perjury charge for knowingly lying about whether he was injected by someone other than his doctor, prosecutors have incorporated a charge that does not technically require them to prove that Clemens used illegal substances. Count 4 simply states that Clemens knowingly lied when asserting that McNamee injected him with Vitamin B12, a legal substance.

Counts 5 and 6 concern similar facts. They charge that Clemens committed perjury while testifying before the House Oversight Committee on February 13, 2008.

3) If Clemens is convicted, will he be sentenced to prison and if so, for how long?

If Clemens is convicted on all six charges, he would face a recommended sentence of 15 to 21 months, though Judge Walton is not bound by sentencing guidelines and could assign a stiffer or lighter sentence. It would be a near certainty, however, that Clemens is sentenced to prison.

If Clemens is only convicted on one or two charges, he would likely receive a shorter sentence, such as six months, or possibly home confinement; Judge Walton would enjoy substantial discretion.

If there is a hung jury, meaning the 12 jurors cannot unanimously agree on a charge, then prosecutors would preserve the right to retry him at a later date. A hung jury would not be a fluke outcome. Consider Bonds, who was convicted on one count of obstruction of justice in April but received a hung jury on three counts of perjury. He will find out in the next few months whether he faces retrial.

4) Will Clemens testify?

Although Clemens would probably like to testify, he probably won't. The Fifth Amendment commands that defendants in criminal trials only testify if they so choose. Juries, moreover, are instructed by the judge to not draw any adverse inferences from a defendant's decision to refrain from testifying.

Clemens' attorneys will likely assure him that they will be able to effectively attack the prosecution's case and that his testifying would be too risky, even if Clemens is in fact telling the truth. The goal of a criminal defense attorney is not prove a defendant's innocence per se; rather, it is to prove that there is reasonable doubt in the prosecution's case, and thus the jury must find the defendant not guilty.

If McNamee turns out to be a less-than-credible witness, then much of the government's case against Clemens would be compromised and the defense would be poised to secure a not guilty verdict. In that scenario, having Clemens testify would be a dubious strategy for at least two reasons. First, Clemens would have to face difficult cross-examination questions from seasoned and talented prosecutors who win about 90 percent of their trials; if he struggled with questions from members of Congress, how would he do with questions from prosecutors? Second, the jury's focus would turn from the believability of McNamee to that of Clemens, who would likely labor to explain certain aspects of his defense.

But if McNamee holds up well against cross examination -- and he spoke well before Congress in 2008 -- and if the government's other witnesses and physical evidence seem persuasive, Clemens may need to testify in order to avoid conviction. Whether he does well or poorly, Clemens on the stand would undoubtedly offer some of the trial's most dramatic moments.

 
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