Monday, August 23, 2010

A Primer: Clemens, PEDs, Perjury & The Arguments

We may be about to see the biggest trial since OJ. One thing is for sure – the course of Roger Clemens’ life has permanently and dramatically changed and could end with him behind bars.

This past Thursday, he was indicted by a federal grand jury on two counts of perjury and one count of obstruction of Congress for statements he made during a US Congressional Committee hearing in February 2008 in which Clemens emphatically denied using steroids or human growth hormone (HGH). Clemens was also charged with three counts of making false statements to a Committee staff member during a deposition one week before to the hearing.

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.

Indictment Versus Conviction

Remember Clemens has been indicted and not convicted. An indictment is very serious but is not a conviction.

To get an indictment, the prosecution only needed to convince a grand jury that there was probable cause that Clemens committed perjury. The grand jury process heavily favours the government. They pick the evidence, the witnesses, and most of the time, are the only ones questioning the witnesses.

On the flip side, at trial, the prosecution must prove the offences beyond a reasonable doubt, which is a lot tougher than just showing the softer probable cause. On top of that, Clemens and his lawyers will be able to fight the case every step of the way.

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.

Jail Time

We know that Clemens is defiant. In his recent Tweet, he stated that he was going to challenge the allegations. He is also mindful of protecting his legacy, as well as getting into the Hall of Fame.

Clemens may believe he has too much to lose if he doesn’t fight this. So don’t be surprised if he doesn’t settle and decides to fight this aggressively.

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 will receive a sentence of 15 to 21 months in prison, and could be out for good behaviour in 13 to 18 months.

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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