Commentary

Roger Clemens indictment: What now?

Should he negotiate a settlement? Will he go to prison? We have answers.

Originally Published: August 20, 2010
By Lester Munson | ESPN.com

A federal grand jury in Washington, D.C., has indicted Roger Clemens on charges of obstruction of Congress, false statements and perjury. Unless he accepts a negotiated settlement, he will face a trial about a year from now. The indictment is the result of Clemens' testimony before the U.S. House of Representatives Committee on Oversight and Government Reform in February 2008, in which he denied ever using performance-enhancing drugs. The grand jury's investigation and the indictment raise legal questions about what has happened and what will happen. Here are some of the questions and their answers:

What is the basis of the charges against Clemens in the first place?

[+] EnlargeRoger Clemens and Brian McNamee
AP Photo/Susan WalshRoger Clemens listened intently to what Brian McNamee said at the February 2008 hearing that led to the indictment of Clemens on perjury charges.

Brian McNamee, Clemens' former personal trainer, said one thing. Clemens said another. The conflict in their testimony was irreconcilable. The Democrats and Republicans on the committee agreed that they believed McNamee and did not believe Clemens. In a letter signed by the then-committee chairman, Democrat Henry Waxman of California, and by the then-ranking Republican, Tom Davis of Virginia, the committee asked the U.S. Department of Justice to investigate. That investigation reached the same conclusions: McNamee was truthful, and Clemens lied.

What if the grand jury is wrong? What if Clemens is telling the truth?

The best hope for vindication for Clemens is for him and his legal team to find a way to prove to a jury in Washington that McNamee lied. Clemens' side must somehow destroy the veracity and credibility of McNamee and show that Clemens was trustworthy in his denial of McNamee's charges. It will not be easy. The cross-examination of McNamee will be the turning point of the trial. A vicious attack on McNamee easily could backfire on Clemens' attorneys. McNamee was an impressive witness at the congressional committee hearing. As a former police officer, McNamee offered in his New York accent a just-the-facts account that rang true with most of the people in the room. To prove that McNamee lied, Clemens likely will be forced to take the stand and testify himself. It is always dangerous for a defendant to testify in a trial because it subjects him to questioning from the prosecution's lawyers. It will be doubly dangerous for Clemens to testify, in light of his emphatic -- and perhaps even arrogant and toxic -- denials since the charges against him were first described in the Mitchell report.

Should Clemens consider negotiating a settlement with an admission to a lesser charge?

Yes. The 15 specific charges described in the indictment will be difficult, if not impossible, for Clemens and his lawyers to explain away. The case against him appears to be powerful. It looks stronger than the perjury charges against Barry Bonds. Clemens has no one disrupting the government's case the way former trainer Greg Anderson is disrupting the case against Bonds. (Anderson would be a star witness but has deflected every request by the government to provide testimony or evidence, twice choosing to go to prison rather than cooperate.) If Clemens is listening to his lawyers, he is hearing them say it would be wise to consider bargaining with the prosecutors. If he could come across as serious in an admission that he lied and could show remorse and contrition, Clemens could walk away with a short period of incarceration or even home confinement -- a couple of months living in his mansion. But Clemens has been defiant in his denials and is likely to continue to be defiant. If he persists in his claims of innocence and the jury finds him guilty, he will face a jail sentence that could be as short as six months and as long as 18 months.

How well-positioned for trial are the lawyers representing Clemens?

Clemens' lead lawyer, Rusty Hardin, is one of the great trial attorneys in Texas. He has enjoyed considerable success both in the courtroom and in the media, but he has been curiously ineffective in his work for Clemens. Since the publication of the Mitchell report in December 2007, Hardin has been unable to seize the initiative and seems to have made a bad situation worse. Hardin staged a disastrous news conference for Clemens in January 2008, filed an ill-advised defamation suit against McNamee the same month and embarrassed himself in a shouting match at the committee hearing. Does Hardin have the control of the situation that great lawyers need to be successful, or has he allowed Clemens to take over? It might be that the client rather than the lawyer is forming the legal strategy, and that can be a dangerous situation for a defendant.

[+] EnlargeRusty Hardin
AP Photo/David J. PhillipRusty Hardin is a top trial lawyer, but he might have a tough job defending Clemens in front of a jury.

In addition to Hardin, Clemens is likely to add a lawyer who is a fixture in the federal courthouse in Washington, an advocate who is familiar with the culture and protocols that prevail in the building. It is always an advantage to have a local lawyer who has had experience with the judge assigned to the case (U.S. District Judge Reggie Walton in this case). Gilbert Arenas, for example, enjoyed an excellent outcome in the face of serious gun charges, partly as the result of the work of Washington lawyer Kenneth Wainstein of the firm of O'Melveny & Myers.

Do the federal prosecutors have any evidence to support McNamee's version of what happened?

Yes. Andy Pettitte, a friend of Clemens', is expected to be a powerful witness for the federal prosecutors -- against his friend. It is not yet known whether Pettitte testified before the grand jury; but barring unforeseen developments, he will be in a starring role at the trial. In a deposition, he admitted to his own use of HGH provided by McNamee, and he supported McNamee's account of drug use by Clemens. When a committee member confronted Clemens with Pettitte's testimony, Clemens used a word we don't hear much: "misremember." Pettitte, Clemens claimed, had "misremembered" what happened. Other possible supporting evidence might come from the drug vials and syringes that McNamee says he stashed in anticipation of any kind of investigation. However, there is no mention of the drug paraphernalia in the indictment, and the prosecution will have serious problems proving the validity of any such evidence it produces. The prosecutors could decide to avoid those problems and rely on the testimony of McNamee and Pettitte.

What is the meaning of "obstruction of Congress"?

It is a rare but serious charge. The committee has the authority to investigate anything it wants to investigate. If he was lying, Clemens was interfering or obstructing the committee's effort to determine the facts about steroids use in baseball. The indictment, a masterpiece of legal drafting, lays out in detail the committee's authority and the way in which Clemens impeded its investigation. In the various hearings that occur every day on Capitol Hill, many witnesses testify. Every witness shades the facts to support his or her position on the issue, and it would be impossible to prosecute every witness who is caught in a misstatement. But the gulf between the Clemens version and the McNamee version of what happened was so stark and so dramatic, the committee decided it could not ignore it.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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