Key questions before jury decides Roger Clemens' fate
Roger Clemens' nine-week perjury trial is finally ready for the jury
Clemens could face multiple years in jail if convicted of all counts
The case will likely boil down to whether jurors believe accuser Brian McNamee
After nine weeks, 46 witnesses and several instances of jurors dozing off, lawyers' arguments in U.S. v. Roger Clemens have finally ended. Twelve jurors -- eight women and four men -- will now decide the fate of the seven-time Cy Young winner. Clemens faces six felony counts of perjury, false statements and obstruction of Congress. All of the counts stem from his infamous testimony before Congress in February 2008. Here are some of the key questions as the jury begins its deliberations:
1. How long will the jury take to deliberate?
As long as needed. All of the jurors must unanimously agree on each of the six counts or determine that they cannot agree. This could mean hours, days or even weeks. They will share with each other their impressions of the witnesses and evidence, and will eventually vote on whether the government has proven, beyond a reasonable doubt, that Clemens is guilty of each count. A conviction on each count will require a unanimous vote; a vote of 11 to 1 may signal broad jury consensus, but would not be enough. Clemens needs only one sympathetic juror to avoid a conviction.
If the jury takes several days to deliberate it would likely signal they are unable to unanimously agree on at least one count. U.S. District Judge Reggie Walton would probably then encourage continued deliberation. If still unable to unanimously agree, a mistrial would be declared. The government could re-try Clemens on any of the mistrial counts, and may be tempted to if the vote to convict is 11 to 1 or 10 to 2. Then again, in light of last summer's mistrial and the intense public criticism about this prosecution, the Obama Justice Department may have already nixed the possibility of a retrial.
2. Do the jurors' backgrounds make a conviction more or less likely?
As uncovered during the jury selection process, these 12 jurors are remarkably uninformed about baseball and Clemens. The jury's apparent "baseball blank slate" does not necessarily benefit either side. On one hand, it might benefit Clemens since various polls indicate that baseball fans overwhelmingly believe Clemens used steroids and HGH. On the other hand, since part of Clemens' defense is to say the success he enjoyed as an aging pitcher was attributable to an uncanny work ethic and to learning a new pitch (the split-fingered fastball), jurors unfamiliar with baseball may not appreciate this line of reasoning.
The fact that most of the jurors are women has received speculation as a deliberate strategy on the part of either the defense or prosecution, but such speculation is unwarranted. Pursuant to the Fourteenth Amendment, the jury selection process cannot exclude jurors on the basis of gender (or race).
3. Who will be mentioned more often in jury deliberations: Brian McNamee or Roger Clemens?
Although Clemens is the defendant, McNamee has become the trial's central figure. Put simply, if the jury believes McNamee, Clemens will almost surely be convicted; if the jury does not believe McNamee, Clemens will almost surely be found not guilty.
Working in the prosecutors' favor, McNamee mostly withstood hostile questioning from Clemens' attorneys and generally seemed credible while on the stand. Jurors noticed how he calmly detailed recollections of injecting Clemens with steroids and human growth hormone. They also heard him name Andy Pettitte, Chuck Knoblauch and Mike Stanton as teammates of Clemens whom McNamee provided HGH, thus suggesting that Clemens may too have received HGH. Jurors also listened to McNamee explain how he has suffered personally and professionally, rather than benefitting, by implicating Clemens. Although there are questions about his past conduct, McNamee's testimony, both in terms of style and substance, seemed authentic.
Working in the defense's favor, McNamee showed his flaws as the government's key witness. He admitted to previously lying about Clemens and he acknowledged that Clemens did not specifically ask for steroids or HGH when he first asked for McNamee's help. Jurors may have also found McNamee to be weird or even devious when he described storing used syringes, purportedly of Clemens, in a Miller Lite beer can and a Fed Ex box. Overall, however, McNamee scored more points for the prosecution than he gave up.
McNamee's moderate success on the stand was downgraded by statements from other witnesses. Most notably, McNamee's estranged wife, Eileen McNamee, directly contradicted him. She did not recall seeing the infamous Miller Lite can in her home -- an observation which bolsters Clemens' contention that McNamee manufactured or tampered with evidence. Although prosecutors were able to raise questions about Eileen McNamee's recollection of events, her testimony gave jurors reason to doubt her husband.
McNamee also drew fire from Jerry Laveroni, the security director for the New York Yankees while McNamee worked for the team. Laveroni described incidents that called McNamee's judgment into question and opined that McNamee had "zero" credibility and could not be believed under oath. If jurors weren't sure about McNamee by the time Laveroni testified, they probably liked him less after it.
Even if jurors remain inclined to believe McNamee, an "inclination" will likely not be enough to constitute beyond a reasonable doubt.
4. How important was testimony from Clemens' former teammates and others who championed his work ethic?
The testimony was of varying importance. Most of it constituted generic praise for Clemens' drive and effort, which Clemens hopes jurors will take to mean he did not cheat while prosecutors hope jurors will dismiss as hokey or irrelevant.
Three defense witnesses made specific statements that could prove crucial.
First, Mike Boddicker, who pitched with Clemens on the Red Sox in 1989 and 1990, said he witnessed Clemens receive a Vitamin B12 shot. Boddicker's testimony undermines Count 4, which asserts that Clemens lied when testifying that McNamee injected him with B12. While McNamee did not work with Clemens until 1998, establishing that Clemens previously used B12 strengthens Clemens' defense.
Second, Charlie O'Brien, who caught Clemens on the Blue Jays in 1997, corroborated Clemens' account about the availability of B12 shots in the Blue Jays locker room. O'Brien also attributed Clemens' unusual rebirth as a 34-year-old pitcher with the Blue Jays in 1997 -- Clemens went from 10-13 with a 3.63 ERA while pitching for the Red Sox in 1996 to 21-7 with a 2.05 ERA -- to Clemens developing a split-fingered fastball. If nothing else, O'Brien's testimony about the split-fingered fastball clouds the prosecution's narrative that Clemens regained his dominant form because of steroids and HGH.
Third, Darrin Fletcher, who caught Clemens on the Blue Jays in 1998, implied that McNamee offered to inject him with B12. Fletcher added that he did not see Clemens at Jose Canseco's pool party in 1998. Prosecutors assert that Clemens obstructed Congress when testifying that he was not at Canseco's party; several witnesses, including McNamee, testified that he saw Clemens there. Fletcher's testimony supplies uncertainty over whether Clemens was at the party. With "beyond reasonable doubt" as the standard for conviction, uncertainty can easily prevent a conviction.
5. Did the government expect too much from Andy Pettitte?
If the government expected a great deal from Pettitte testifying about an alleged conversation with Clemens that may have taken place in 1999 or maybe 2000, in which Clemens may or may not have admitted to using HGH, it probably expected too much. Pettitte acknowledged what anyone in his position would have: A conversation from 12 or 13 years ago is hard to remember. Jurors probably will not rely heavily on Pettitte's testimony.
6. Should Clemens have testified?
Probably not, as whatever gains Clemens may have obtained by answering softball questions on direct examination likely would have been outweighed by answering a deadly mix of fastballs and changeups on cross. Also, just like for big league pitchers, past performance for witnesses is predictive: In 2008, Clemens struggled to answer questions from members of Congress about the steroids allegations; answering similar, but more strategically worded, questions from trial-savvy prosecutors may have been a disaster.
7. If the jury convicts Clemens, will he be sent to prison?
It would be up to Judge Walton to send a convicted Clemens to prison and would likely depend on the number of counts for which Clemens is convicted. If jurors convict Clemens of all six counts, he would face a maximum sentence of 30 years in prison and a fine of $1.5 million. There is virtually no chance that Clemens would receive such a harsh sentence. Given Clemens' lack of criminal record, among other mitigating factors, he would face a recommended sentence of 15 to 21 months. Still, Judge Walton -- who is known as a "tough sentencer" -- is not bound by sentencing guidelines and could impose a lighter or heavier sentence for whatever reasons he sees fit. Scooter Libby, who served as chief of staff to Vice President Dick Cheney and who was convicted on perjury charges, knows that all too well. Judge Walton sentenced Libby to 30 months in prison despite the recommended sentence calling for only 15 to 21 months.
If Clemens is instead convicted on only one of six counts, Judge Walton may reason that the government largely failed its case and that Clemens does not deserve prison. In that scenario, Clemens might receive a combination of probation, house arrest and community service. Barry Bonds received this type of sentence in his conviction of obstruction of justice.
8. Could the jurors produce a "compromise" verdict whereby they convict Clemens on some but not all counts?
Compromise verdicts are known to arise from time-to-time and involve jurors changing their votes to avoid a deadlocked jury and mistrial. Compromising jurors, in other words, do not vote exclusively on whether they believe the government has proven its case beyond a reasonable doubt. They also consider whether all 12 jurors can agree on an acceptable outcome.
In Clemens' case, not every juror may be willing to convict him on perjury and false statements, but if they are deadlocked for days, the 12 might eventually agree to convict him on the least damning count, obstruction of Congress. The problem with this compromise would be that it undermines the role of the jury; jurors would not have convicted Clemens because all 12 of them believed the government proved its case beyond a reasonable doubt, they would have convicted him to settle their internal disagreement and to go home.
Given that the Clemens jury has already spent nine weeks in court -- and thus nine weeks removed from their regular lives -- the idea that jurors might quickly compromise to get back to normal is plausible. Judge Walton, however, will likely caution them to follow their instructions and remain in deliberation as long as is needed for justice to be served.
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 on Twitter.
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