Posted: Monday April 16, 2012 10:55AM ; Updated: Monday April 16, 2012 12:09PM
Michael McCann
Michael McCann>SPORTS LAW

What to expect at Roger Clemens' perjury trial, second time around

Story Highlights

Roger Clemens is accused of knowingly lying to Congress about alleged PED use

First trial last summer ended in mistrail after two days because of a technicality

Andy Pettitte, a former teammate of Clemens', will be a key prosecution witness

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Roger Clemens
Federal prosecutors have charged Roger Clemens with knowingly lying to Congress in February 2008.
UPI/Landov

U.S. v. Roger Clemens -- take two -- starts today in the D.C. chambers of U.S. District Judge Reggie Walton. SI.com legal analyst Michael McCann answers the key questions.

Why is the Justice Department prosecuting Clemens?

Federal prosecutors believe that Clemens knowingly lied to members of Congress and their staff in February 2008. The purported lying occurred on two days, Feb. 5 and Feb. 13, and was rooted in how Clemens responded to allegations in the Mitchell Report. The report, published in December 2007 and summarizing Major League Baseball's investigation into players' use of performance enhancing drugs, claimed that Clemens used anabolic steroids and human growth hormone (HGH) while a member of the Toronto Blue Jays and New York Yankees. Almost immediately after publication of the report, Clemens denied the accusations on 60 Minutes and through other national media.

The House Oversight Committee, which was conducting its own investigation into the Mitchell Report at the time, invited Clemens to speak about his categorical denials. Clemens embraced the opportunity and on Feb. 5 voluntarily provided sworn deposition to Committee staff. In his deposition, Clemens denied ever using steroids and HGH and insisted that he took Vitamin B12, a legal substance. Eight days later, Clemens testified before the Committee in a nationally televised hearing. The hearing generated substantial controversy, especially given contradictory statements by Clemens and his former trainer and chief accuser, Brian McNamee.

Two weeks following the hearing, the Committee made clear it believed McNamee and not Clemens. The committee's chairman, Henry Waxman, and ranking Republican, Tom Davis, wrote a letter to U.S. Attorney General Michael Mukasey urging the Justice Department to investigate the veracity of Clemens's testimony. In January 2009, a grand jury was convened to determine if Clemens should be charged with crimes.

On Aug. 19, 2010, a federal grand jury indicted Clemens on six felony counts. They included perjury, false statements and obstruction of justice. Clemens faced trial in July 2011, but Walton declared a mistrial on its second day after prosecutors mistakenly showed jurors prohibited evidence.

Didn't Clemens win his trial last summer? Why is the Justice Department prosecuting him again?

Clemens did not "win" the July 2011 trial. It was declared a mistrial, which stopped the trial long before the jury could determine if the prosecution proved its case. A mistrial can prevent a retrial if the retrial would violate the Fifth Amendment's Double Jeopardy Clause, which bars repeated prosecutions for the same offense. Prosecutors persuaded Judge Walton that a retrial of Clemens would not violate the Fifth Amendment. They emphasized that their error was as an unfortunate courtroom misstep which had no bearing on Clemens' guilt or innocence. The mistake also occurred very early in the trial, before witnesses testified and before the vast majority of evidence was examined.

Does the retrial change the approach of each side?

Neither side is likely to significantly alter its strategy from last summer. The mistrial occurred on the second day of what was expected to be a 20 to 30 day trial; neither side had revealed much. One possible advantage to Clemens in the retrial is that it is occurring nine months later. As time goes on, memories -- including those of witnesses -- fade and become less clear. While nine months may not dramatically change what witnesses remember, Clemens' legal team will expose any inconsistencies in the testimony of witnesses for the prosecution.

In a move to increase their chances for obtaining a conviction, federal prosecutors have added attorneys for the retrial, going from two to five lawyers. While the larger legal team should help, it also exposes the government to more criticism if Clemens prevails. A failed prosecution would lead commentators to question, if not ridicule, the Justice Department's substantial investment of time, expertise and tax dollars.

How will prosecutors argue that Clemens knowingly lied?

Prosecutors will use witness testimony and scientific evidence to portray Clemens as having repeatedly and knowingly used PEDs, and thus knowingly lying to Congress.

The government's two most important witnesses are McNamee and Clemens' former Yankees teammate Andy Pettitte. McNamee will testify that, with Clemens' knowledge and consent, he injected the seven-time Cy Young Award winner with steroids and HGH on numerous occasions. Pettitte, at one point a close friend of Clemens' and a witness who has no reason to lie, will testify that McNamee supplied him with HGH and that Clemens admitted to him he used HGH. Other key prosecution witnesses will include Kirk Radomski, a supplier of steroids who will testify to supplying steroids to McNamee and to dozens of MLB players, and forensic experts who will testify as to DNA evidence purportedly linking Clemens to steroids and HGH.

Prosecutors will also introduce physical evidence, such as syringes, cotton swabs and gauzes to establish a connection between Clemens and the illegal substances. Other physical evidence will include a beer can and Fed Ex box that McNamee allegedly used to store Clemens' materials, audio clips of Clemens and others speaking, player contracts, assorted photos of Clemens over the years and even a Sports Illustrated photo from 2002 of Debbie Clemens, whom McNamee claims to have also injected with HGH.

How will Clemens' attorneys defend their client?

The core of Clemens' defense will be a full-scale attack on McNamee's credibility. The more the case becomes about McNamee, the better for Clemens.

Clemens' attorneys, Rusty Hardin and Michael Attanasio, will portray McNamee as duplicitously switching between training ballplayers and dealing drugs. They will offer a narrative that includes McNamee's assertions over the years that Clemens was clean. They will then argue that McNamee opportunistically changed his story to avoid prosecution. Along those lines, Hardin and Attanasio will demand that McNamee explain the purportedly false statements he made to law enforcement. If he was willing to lie to police, so the logic goes, then he would be willing to lie to jurors, too.

The defense will also make issue of a proffer agreement McNamee signed with law enforcement in 2006. The agreement ensured that so long as McNamee told authorities everything he knew about steroids and baseball, he would avoid prosecution. The proffer agreement sets the table for Clemens to argue that McNamee has an incentive to embellish in order to appease authorities who could otherwise charge him with criminal acts. To respond to this line of questioning, prosecutors may call former major leaguers David Segui and C.J. Nitkowski to the stand. They would testify that McNamee told them about injecting Clemens with PEDs before McNamee signed a proffer agreement.

Hardin and Attanasio are also poised to try a Ryan Braun-like chain of custody attack of McNamee's incriminating evidence. Not only will they portray McNamee as weird, devious and untrustworthy to have stored used syringes and bloody gauzes in his basement for years, they are hoping that Walton allows access to sealed documents in McNamee's divorce proceedings with his estranged wife, Eileen. The documents could indicate that McNamee's storage of the materials was unreliable and susceptible to disorganization or tamper.

In stark contrast to what will likely be an aggressive cross examination of McNamee, the defense will more calmly approach Pettitte. Pettitte, unlike McNamee, lacks personal baggage and questions about his character. He also, unlike McNamee, has no reason to possibly lie about Clemens. Expect Clemens's lawyers to question something which has no bearing on Pettitte's character: his memory.

Pettitte is expected to testify that Clemens told him in 1999 or 2000 about using illegal PEDs. The defense will undoubtedly ask him to acknowledge that this alleged conversation occurred a long time ago, and that it is possible that Pettitte simply "misremembers." In that same vein, the defense will also ask Pettitte for details about the setting of the conversation, which he may be unable to provide 13 years later. Jurors could find Pettitte completely credible, but lacking in the certainty of memory needed to convict Clemens.

Clemens' lawyers will also portray the case against Clemens, which has likely cost millions of dollars to date, as completely wasteful of taxpayer dollars. Although this argument is not based on law, it may nonetheless resonate with jurors and increase the chances of jury nullification (acquitting Clemens not because of legal reasoning but because they do not believe in the prosecution). The tactic may work -- according to a transcript of Judge Walton from last September, several jurors in the first trial thought it would be a waste of tax dollars to retry Clemens.

Do federal prosecutors have to prove that Clemens used illegal substances in order to convict him?

No, and this could prove important. Count 4 asserts that Clemens knowingly lied when he claimed, under oath, that McNamee injected him with Vitamin B12. Therefore even if prosecutors are unable to persuade jurors of Clemens using illegal substances, they can still obtain a conviction on Count 4 if they establish that McNamee never injected Clemens with Vitamin B12. Count 4 is a reminder that Clemens is not on trial for using steroids; he's on trial for knowingly lying under oath.

Will Clemens testify in his own defense?

As much as Clemens -- who seems to relish defending himself -- probably wants to testify in his own defense, his lawyers will undoubtedly try to dissuade him of the idea. Clemens struggled with questions posed by members of Congress; questions posed by seasoned prosecutors who win 90 percent of their cases will only be harder. On the other hand, if the prosecution presents a very compelling case against Clemens, Hardin and Attanasio may believe that Clemens has no choice but to testify.

How long will the trial last?

The trial is expected to last four to six weeks.

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

If Clemens is convicted on all counts, he would face a recommended sentence of 15 to 21 months in prison. Given his lack of criminal record, Clemens would be poised to receive on the lower end of the recommended sentence. A conviction on just one or two counts could lead to home confinement rather than prison. Barry Bonds, who last April was convicted on one count of obstruction of justice, received home confinement. As recommended sentences are non-binding, Judge Walton would have discretion.

Unfortunately for Clemens, he was not assigned the ideal judge from whom to receive a discretionary sentence. Walton is regarded as a "tough sentencer." Consider that even though the recommended sentence was 15 to 21 months, Walton sentenced Scooter Libby, the former chief of staff to Vice President Dick Cheney who was convicted on perjury charges, to 30 months in prison. The judge felt that Libby's crime of leaking the identify of a CIA operative warranted a harsher penalty. Would Walton feel the same about someone who was convicted of repeatedly lying before Congress, on national TV? Clemens does not want to find out.

Michael McCann is a sports 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 serves as NBA TV's On-Air Legal Analyst. Follow him onTwitter.

 
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