Grand jury to ponder Clemens testimony

Originally Published: January 12, 2009
By Mike Fish | ESPN.com

A federal grand jury has convened in Washington, D.C., to determine whether to indict seven-time Cy Young Award winner Roger Clemens for lying under oath to Congress when he denied taking performance-enhancing drugs, ESPN.com has learned.

Roger Clemens
Clemens

Witnesses have been subpoenaed to appear before the grand jury as early as this week. The jurors are expected to review evidence presented by assistant U.S. attorney Daniel P. Butler and determine whether there is probable cause to return an indictment for perjury. Butler was in the news last April for successfully prosecuting a racketeering and money-laundering case against Deborah Jean Palfrey, dubbed "the D.C. Madam."

Those expected to either testify in front of the grand jury or to be interviewed by Butler and FBI agents include Clemens' former personal trainer, Brian McNamee, and admitted drug supplier Kirk Radomski. Charlie Scheeler or other investigators who helped assemble the Mitchell report, Major League Baseball's inquiry into performance-enhancing drug use that first publicly identified Clemens for allegedly taking steroids, could also be called before the grand jury.

Prosecutors are also likely to confer with Food and Drug Administration agent Jeff Novitzky, the government's lead investigator in a series of sports-doping cases over the past five years. Novitzky attended the four-hour hearing last February during which Clemens and McNamee offered conflicting testimony about the pitcher's alleged use of performance-enhancing drugs.

It is not known whether Clemens himself will be invited to appear before the grand jury, though a former Washington federal prosecutor said the government could afford Clemens a chance to explain the contradictions and possibly avoid indictment. Should the grand jury eventually return an indictment, his appearance could also provide the prosecution a start in fleshing out Clemens' possible defense, the former prosecutor said.

"It's standard operating procedure for a prosecutor, and it's probably been convened for a while," Clemens' lead lawyer, Rusty Hardin, said through spokesman Patrick Dorton.

Federal agents also have interviewed friends and acquaintances of Clemens in Houston over the past year, and it is possible some of them could be invited to Washington.

A Houston training center owner, Shaun Kelley, told The Associated Press on Monday that he had been questioned by the FBI last April and denied meeting Clemens or providing the pitcher or any of the pitcher's associates with illegal substances. Kelley said he employed Clemens' stepsister Bonnie Owens for about a year.

Kelley said neither he nor his lawyers had been contacted by the grand jury.

"It is just not fair for me, because they just come down here and throw me under the bus, and I lose half-a-million of business," Kelly said Monday in a telephone interview with the AP.

"I know in my heart I passed it," he said of the polygraph, "but the FBI is not known for admitting their mistakes."

Another possibility is former teammate Andy Pettitte. He and another former New York Yankees teammate, Chuck Knoblauch, confirmed McNamee's testimony that they used performance-enhancing drugs when he was their trainer.

Pettitte provided a sworn affidavit to a congressional committee, in which he claimed Clemens told him nearly 10 years ago that he used growth hormone. Pressed to address Pettitte's statement during the committee hearing, Clemens said Pettitte had "misremembered."

The grand jury is also likely to consider DNA samples on used needles and bloody gauze pads McNamee turned over to federal prosecutors last January. McNamee's lawyers have claimed he used those needles and gauze pads while injecting Clemens with steroids and HGH. Clemens' side has called that evidence "manufactured."

McNamee's lawyer, Richard Emery, said Monday his client has not been called as a grand jury witness or received a subpoena. But he does expect McNamee to testify again.

"We will be cooperating. We've been in contact with the federal authorities for a year and a half," Emery said, according to The Associated Press. "We look forward to the results, which we fully expect will show that Brian has been telling the truth all along."

Additional evidence for jurors to review could come from Radomski, a former New York Mets clubhouse attendant who was a source of the performance-enhancing drugs that McNamee provided to a number of players. In July, Radomski turned over to federal investigators an overnight shipping receipt for a package of two kits of HGH that he sent after the 2002 season, in care of McNamee, to Clemens at the pitcher's Houston home.

"The investigators knew from day one that I sent a package to Clemens' house," Radomski told ESPN.com last summer after discovering he still had the receipt. "They knew before the Mitchell report was released and before Brian went before Congress. So this is nothing new to them.

"I just couldn't find the receipt."

Federal agents raided Radomski's Long Island home in December 2005, uncovering evidence that he supplied anabolic steroids and other drugs to pro baseball players. Radomski said he knew the performance-enhancing drugs sold to McNamee were intended for his baseball-playing clients, though he didn't inquire about their identities.

McNamee put himself in Clemens' crosshairs when he signed a proffer agreement with federal prosecutors, stipulating that he could not be charged with steroid distribution as long as everything he told the prosecutors was truthful. He also was asked to cooperate with the baseball-commissioned steroids investigation led by former Sen. George Mitchell, which made public McNamee's claims that he injected Clemens with steroids and growth hormone in 1998, 2000 and 2001.

Congress decided to hold its hearing after Clemens publicly challenged the veracity of the Mitchell report.

Clemens filed a defamation lawsuit against McNamee last January. McNamee's attorneys have since argued to have the suit thrown out; and last month, they filed a defamation suit on McNamee's behalf against Clemens.

Clemens is the latest professional athlete to come under federal scrutiny for statements made about alleged use of steroids or performance-enhancing drugs. Last year, the FBI opened an investigation into whether Houston Astros shortstop Miguel Tejada lied in 2005 when, during a congressional follow-up on testimony given by Rafael Palmeiro, he told House committee staff that he never took steroids or HGH.

Barry Bonds, a seven-time MVP, was indicted last year on perjury and obstruction of justice charges stemming from his 2003 grand jury testimony in which he denied knowingly taking illegal performance-enhancing drugs. Bonds is scheduled for trial this March in San Francisco.

If an indictment is returned against Clemens, it could set the stage for high-profile perjury trials for a generation's top hitter and pitcher.

A retired FBI agent said that perjury cases involving high-profile defendants are becoming more common, telling ESPN.com: "It used to be we didn't mess with these kinds of cases. Everybody lied to us. Then, they got Martha Stewart on lying, and it became the flavor of the month."

The FBI began investigating Clemens last February, two weeks after the pitching icon and McNamee offered starkly conflicting testimony before a House committee hearing. Attorney General Michael Mukasey was initially asked to investigate Clemens by leadership of the House Oversight and Government Reform Committee. Lawmakers did not ask for a similar investigation of McNamee.

With his Hall of Fame candidacy potentially hanging in the balance, Clemens told the House committee: "I have never taken steroids or HGH. No matter what we discuss here today, I am never going to have my name restored."

Without looking at McNamee, who was seated next to him, Clemens told committee members. "I have strong disagreements with what this man says about me."

Just minutes earlier, McNamee told committee members: "When I told Sen. Mitchell that I injected Roger Clemens with performance-enhancing drugs, I told the truth. I told the truth about steroids and human growth hormone. I injected those drugs into the body of Roger Clemens at his direction. Unfortunately, Roger has denied this and has led a full-court attack on my credibility."

Mike Fish is an investigative reporter for ESPN.com. He can be reached at michaeljfish@gmail.com. Information from The Associated Press is included in this report.

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