Commentary

How the Roger Clemens trial shapes up

Want to know how the Rocket's trial will develop? And why the NHLPA is such a mess?

Originally Published: August 26, 2010
By Lester Munson | ESPN.com

Perjury, prison and … uhhh, is there a word for "stupidity" that starts with a "p"? (The thesaurus isn't coming through here.) Anyway, those are three of Courtside Seat's favorite subjects, even if they can't be alliterated. And guess what? Right now, they're all pertinent. So today, we start with …

Rocket's Role

In the aftermath of the federal indictment of Roger Clemens on perjury charges and his assertion that he will be vindicated in a jury trial in Washington, it's becoming clear that there are some critical factors that will determine the ultimate outcome. Here is a sampling of those factors and a description of their importance.

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Dave Einsel/Getty ImagesRusty Hardin, right, is a brilliant trial attorney, but he might be challenged if his client, Roger Clemens, takes the stand.

Pre-trial Skirmishes: As long as Clemens is paying the bills, his lawyers can be expected to dissect and parse every syllable of the indictment and the government's evidence in an endless series of motions. They will quickly suggest that regardless of the veracity of Clemens' statement to the House Committee on Oversight and Government Reform, the statements were not "material" to the committee's work and cannot be the basis for a perjury charge. The legal requirement of "materiality" is that if the lie did not relate to the investigation, then it cannot result in a perjury charge. To qualify for a perjury prosecution, the lie must be an important issue in the investigation. It can be a serious challenge to the prosecutors in the typical perjury case.

But for Clemens and his lawyers, this typical attack on a perjury charge is not likely to succeed. In their brilliantly drafted indictment, the prosecutors anticipated the "materiality" issue and described the broad jurisdiction of the House committee. Its mandate includes, the prosecutors said in the indictment, "subjects within the committee's legislative jurisdiction as well as any matter within the jurisdiction of other standing House committee." That means, simply, that the committee can look into just about anything and it will be "material."

The Veracity of Brian McNamee: Will the jury believe McNamee's story about injecting Clemens with HGH and steroids? McNamee was a powerful witness when he appeared before the committee of the House of Representatives. Offering direct and definitive answers while hunched over the microphone, McNamee's demeanor and his New York accent were curiously effective. It was much easier to believe him than it was to believe the defiant Clemens, who attempted to strike a righteous pose and attitude. In a bipartisan consensus that is rare on Capitol Hill, both Democrat and Republican committee members concluded that McNamee was truthful and Clemens was not.

Many believe that the Clemens' lead attorney, Rusty Hardin, a brilliant trial lawyer, will be able to damage McNamee's story during his testimony in front of the jury. I'm not so sure. There are some problems and some indiscretions in McNamee's personal history, but many of them will be off limits for Hardin under the federal rules of evidence. McNamee will be well-prepared for the cross-examination. Both the prosecutors and his personal attorney, Earl Ward, have the ability to anticipate Hardin's questions and prepare McNamee for answering them. Hardin is good, but McNamee should be up to the challenge.

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Tim Sloan/AFP/Getty ImagesBrian McNamee has some skeletons in his closet. His legal team will have to prepare him to deal with them at trial.

Other Prosecution Witnesses: Andy Pettitte may emerge as the star witness in the trial. His sincerity and honesty were obvious at the House committee investigation. He did not hesitate to implicate Clemens when asked the right questions. His imposing size and presence, together with his deeply held spiritual convictions, will make him the prosecutors' most formidable weapon.

It is also very possible that the prosecutors, after spending nearly two years on their investigation, have turned up other people who will say they either saw Clemens using performance-enhancing drugs or heard him discuss their use. We won't see a list of government witnesses for several months; but when the list is made public, there likely will be bad news for Clemens.

Positive Drug Tests: The MLB drug testing program of 2003 was supposed to be anonymous, but positive tests have already been attached to the names of Alex Rodriguez, David Ortiz and Sammy Sosa. Is it possible that Clemens also tested positive during the 2003 program? The federal prosecutors should have access to the results of the tests because they enjoy the power of subpoena and can expect cooperation from the agencies (FBI and IRS) that raided the laboratories and confiscated the urine samples. Since they are investigating a potential crime, they are not bound by the agreement between the union and MLB owners to keep the results confidential.

If there is a positive test, it could be admitted as evidence at Clemens' trial and would face none of the chain-of-custody problems that have plagued the government in its prosecution of Barry Bonds.

Clemens Testimony at Trial: For Clemens to have the best chance of persuading a jury to exonerate him, he must consider testifying at the trial. The risk, though, is high. Since he was first reported to be using PEDs in the Mitchell report, Clemens has made a series of public statements and appearances that have aggravated an already difficult situation. Can he contain his rage and his defiance in front of a jury? Will he erupt during cross-examination when his veracity and motives are challenged?

Like most experienced trial lawyers, Hardin knows the dangers that come with a decision to put his client on the stand as a witness. Although Hardin and the legal team would rehearse Clemens in advance of the trial, a final decision on his testimony will not be made until the government has presented its witnesses.

[+] EnlargeRoger Clemens
Brian Bahr/Getty ImagesWill the jury be influenced by Clemens' baseball celebrity? The Congressional committee apparently wasn't.

It might be difficult for Hardin to prevent Clemens from testifying. Hardin recommended against testifying before the House committee, but Clemens insisted that he do it, a decision that now results in his indictment and the possibility of a prison sentence.

Likelihood of Prison Time: If Clemens is convicted, he will face time behind bars. The guidelines, a series of calculations that are frequently a starting point in federal courts, provide for a sentence of 15 to 21 months. His best hope for minimizing the time of incarceration would be somehow to show Judge Reggie Walton that he accepts responsibility and is contrite. It is difficult to imagine the indignant and defiant Clemens accepting responsibility and showing contrition. Any term of incarceration likely would be at the longer end of the range of possibilities.

Jury Nullification: This is an idea that has drifted in and out of fashion in American courts for the past decade. It might be Clemens' best alternative. Applied to the Clemens situation, the notion of jury nullification would result in the jury listening to all of the powerful evidence against him and then saying something to the effect of: So what? There is nothing really wrong with what he did. Yes, the jury would conclude, he took steroids and HGH. Yes, he lied about it. But in the grand scheme of things, how important is it? Everyone was doing it. He was trying to win. If he hurt anyone, he hurt only himself. And he has already paid a serious penalty: Instead of being considered one of the three greatest pitchers of all time, he is viewed as a cheater.

It would be a tricky and difficult task for Clemens' lawyers to move the jury in the nullification direction, but it is not impossible. Subtle mentions at various points during the trial could raise the idea in the minds of the jurors. It would be risky, but it could work.

Bloch-heads

If you have any doubt that the NHL Players' Association is still struggling since its bizarre dismissal of Paul Kelly a year ago, look no further than the union's decision to allow Richard Bloch to arbitrate its grievance on Ilya Kovalchuk's 17-year, $102 million contract with the New Jersey Devils.

With support from Devils general manager Lou Lamoriello and specific, helpful language in the collective bargaining agreement, the union and Kovalchuk had a case that should have been a sure winner. (See the Courtside Seat of July 29.)

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Jim McIsaac/Getty ImagesThe NHLPA apparently didn't do Ilya Kovalchuk any favors with its choice of arbitrators.

But the union lost its chance for a victory when, in a rapidly moving process, it failed to veto the nomination of Bloch as the arbitrator. It should have been a quick and easy decision. Bloch achieved a unique level of infamy when he ruled for the Philadelphia Eagles and against Terrell Owens in 2005 after the Eagles told Owens he would be paid but could neither practice nor play in games.

Bloch's ruling in that case came after head coach Andy Reid testified that he had suspended Owens for "conduct detrimental to the team," a phrase that bristles with meaning in the world of sports labor. The NFL collective bargaining agreement (CBA) clearly and expressly mandates a four-game suspension for such conduct.

But Bloch ignored Reid's testimony and the contractual provision that the union had fought hard to preserve. He invented his own description of Owens' verbal attacks on quarterback Donovan McNabb and the team (T.O. called them "classless") and his fight with Hugh Douglas, labeling the behavior as "a destructive and continuing threat to the team." Bloch wrote 38 pages of dense legal prose to explain his decision, and allowed the Eagles and the NFL to do exactly what the CBA said they could not do: Bar Owens from practices and games for the remainder of the season.

Within minutes of Bloch's decision, the late Gene Upshaw, the leader of the NFL union and a veteran of dozens of arbitrations and highly complex antitrust litigation, blasted Bloch and promised that Bloch would never again serve as an arbiter in an NFL player's grievance.

Referring to Bloch's refusal to follow the CBA language on "conduct detrimental," Upshaw said, "When an arbitrator decides to misinterpret and to add on to the CBA, he can't be an arbitrator any more."

Upshaw, who led the union through litigation decisions of widely varying quality, rarely, if ever, complained about a particular decision. But Bloch's ruling was so egregious that Upshaw could not and would not accept it.

[+] Enlarge Paul Kelly
AP Photo/Petr David JosekPaul Kelly has been out of the NHLPA picture for a year or so. The union has yet to replace him.

"Management and the players union will now have to jointly agree on another arbitrator, and I can assure you, the name won't be Bloch," Upshaw declared. "No way. I won't stand for it. I can't stand for it."

Upshaw was not alone in his evaluation of Bloch's work. Law professors, agents and lawyers who track sports arbitrations rank the Bloch ruling on Owens with the bizarre ruling made in 1997 by former Fordham Law School dean John Feerick after Latrell Sprewell viciously assaulted Warriors'coach P.J. Carlesimo twice during a practice.

Feerick managed to find a way to reverse NBA commissioner David Stern's one-year suspension of Sprewell and reinstate the $23.7 million contract that the Warriors had terminated as the result of Sprewell's obvious violation of its "personal conduct" clause.

If Feerick's decision is the worst in the history of sports arbitration, Bloch's decision on Owens is a close second.

What were they doing at the NHLPA headquarters when Bloch's name surfaced as a possible arbitrator? Was anyone paying attention? Does the union have senior staff capable of a quick evaluation of an arbitrator who was to make a decision that could easily affect other long-term contracts? Did anyone check Bloch's record or talk with staff from other sports unions who had experience with Bloch? Did anyone invest 10 minutes with a Google search to find Upshaw's dispositive denunciation?

No one at the NHLPA will talk about it. John McCambridge, the Chicago attorney who caught the assignment from the union and argued the case before Bloch, refers all queries to the union. And the union issues only a plain vanilla statement of disappointment in the decision.

It's been a year since the Kelly dismissal. The union only now appears to be getting closer to finding a replacement; stories this week indicate that former Major League Baseball Players Association executive director Don Fehr has agreed to take the job. Chances are that if he'd signed on a month ago, the Bloch approval wouldn't have happened. But instead of making a simple and obvious decision to veto Bloch, the union now faces a precedent that could easily cause problems for other free agents looking for long-term contracts.

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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