Monday, April 23, 2012

Legal Overview: The Clemens Trial

With the Roger Clemens trial starting, here's an overview.

Trial: Self-Inflicted Wound

Here's the thing about this whole mess Clemens got himself into: it's self-inflicted.

Clemens was never forced to testify before Congress. He wanted to testify. He was never subpoenaed. Clemens wasn't happy when the 2007 Mitchell Report came out, which was a report summarizing an investigation into the use of PEDs and steroids by MLB players. The report mentioned Clemens 82 times, only third to Canseco (105 times) and Bonds (103).

So he thought he would go to Congress and proclaim his innocence. Problem is that he denied to Congress what others have insisted is true - Clemens used banned substances.

So rather than clear his name, he is now on trial for lying about taking PEDs and steroids.

The Allegations

The underlying allegation is tied to him lying about using performance enhancing drugs (steroids and HGH).

Clemens contradicted testimony given by his former trainer Brian McNamee, who testified that he had injected Clemens with both steroids and HGH.

Clemens denied that McNamee had ever injected him with these substances and said that he injected him with B12 vitamin shots.

Here is the key: to win a conviction, the prosecution will have to prove that Clemens was injected with HGH and steroids, he knew he was being injected, and he knew he was lying when he said he wasn’t injected.

The Charge of Perjury Is Not Just Lying

For the offence of perjury (the most serious offence charged), the prosecution must prove not only that Clemens lied, but that he knowingly lied under oath. This means that Clemens could wiggle out if he can convince the jury that he misunderstood a question or didn’t know exactly what he was taking.

Prosecution Versus Clemens: The Arguments

Clemens has money and will assemble a top notch legal team. This makes a big difference. Expect his lawyers to really dig in and attack the prosecution’s case from every angle. Think OJ – they will be relentless.

Clemens offered up his testimony 2.5 years ago so that means that the prosecution has very likely taken great care in developing its case. They may also have new evidence.

Prosecution’s Arguments

Here are some of the prosecution’s possible arguments:

1) McNamee testified that he injected Clemens with steroids and HGH over 40 times between 1998 and 2001.

2) McNamee has syringes, pads and gauze that have Clemens’ DNA on it.

3) Clemens’ good friend Andy Pettite testified under oath that Clemens told him he used HGH. This corroborated the evidence provided by McNamee.

4) McNamee has testified he injected Clemens, Pettite and Chuck Knoblauch with HGH. Both Pettite and Knoblauch have confirmed this. So the prosecution will argue it is unlikely that McNamee would tell the truth about Pettite and Knoblauch, but lie about Clemens.

5) In 1998, Clemens developed an abscess on his buttocks that he claimed was the result of B12 injections. However, McNamee stated that it was the result of steroid injections and numerous medical experts have said that the mass was unlikely to have been the result of B12 injections and was more consistent with steroid injections.

Clemens Arguments

Clemens is not left without arguments. Here are some of his possible arguments:

1) He will attack McNamee’s credibility and truthfulness. McNamee reached a deal with federal authorities to avoid prosecution for steroid distribution, and Clemens will argue that was his incentive to lie.

2) Clemens will challenge the admissibility and reliability of the syringes, pads and gauze arguing that while in McNamee’s possession for years, they may not have been handled with care.

3) He didn’t know what was in the syringes, so when he said he didn’t take steroids or HGH, he didn't knowingly lying. In addressing Pettite testimony, he could say that Pettite just got it wrong (he misremembered).

4) Important Person Act: Well this isn’t an argument (or a statute) so much as some jurors may be influenced by his fame.

Length of Trial?

It should last about 4 to 6 weeks. That could change though.

Will Clemens Testify?

Clemens can't be forced to testify. Will he testify? Clemens had a tough time before Congress and he may have difficulty the second time around. If Clemens were to testify then he runs risk that jurors will find him guilty simply because they were not convinced. However, it is the prosecution that has the burden of convincing jurors of the defendant’s guilt. So make the prosecution work for it, Clemens’ lawyers will tell him. 

If the case goes off the rails for Clemens, then perhaps you may see Clemens on the stand. Given his defiant, determined and brazen attitude, he may relish the opportunity. However, on balance, don't expect to see Clemens take the stand. 

Jail Time

As far as prison time, each of the six counts he is charged with could result in a sentence of up to 5 years in prison. However, under U.S. sentencing guidelines, if he’s convicted of at least one of the counts of perjury he may receive a sentence of 15 to 21 months in prison, and could be out for good behaviour in 13 to 18 months. However, all this is up to the Judge.

This will be a tough case for Clemens. Remember though – it only takes 1 juror to side with Clemens for him to walk.

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