Commentary

The state of the Clemens case

Federal grand jury weighing perjury charges appears to be nearing a decision

Updated: June 4, 2010, 3:47 PM ET
By Mike Fish | ESPN.com

Roger ClemensAP Photo/Pablo Martinez MonsivaisFormer New York Yankees pitcher Roger Clemens, right, lawyer Charles Scheeler, center, and Clemens' former trainer, Brian McNamee, are sworn in before a Congressional hearing on drug use in baseball on Feb. 13, 2008.

WASHINGTON -- Federal prosecutors aren't showing their cards, but it's clear after appearances the past two weeks by key witnesses Brian McNamee and Jose Canseco that the federal grand jury weighing perjury charges against Roger Clemens is nearing a decision.

Those close to the 16-month-long case say they'd bet that Clemens will be indicted, and that he would put up a spirited defense should the case move to a trial. Clemens' legal team has privately prepared for an indictment for more than a year.

The epic he-said, he-said tale between Clemens and McNamee first played out before a Congressional subcommittee early in 2008, after McNamee admitted to investigators in the Mitchell report -- Major League Baseball's inquiry into performance-enhancing drug use -- that he supplied and injected Clemens with steroids.

Clemens steadfastly denied his former personal trainer's claims and, in 2008, the two offered dramatically different testimony under oath before the Congressional panel. A few weeks later, the FBI opened a perjury probe against Clemens, a seven-time Cy Young Award winner. The federal grand jury began hearing testimony more than 16 months ago.

[+] EnlargeBrian McNamee
Scott J. Ferrell/Congressional Quarterly/Getty ImagesBrian McNamee, a former personal trainer for Roger Clemens, testified before a grand jury weighing perjury charges against Clemens.

Those close to the case say only two options exist that fall short of a perjury trial -- with the odds against either choice to occur. Clemens' camp, headed by hard-charging attorney Rusty Hardin, could humbly accept a government plea deal, but that comes with serious complications. Such an admission could set up Clemens for a potentially devastating financial hit in a civil defamation lawsuit that has been brought by McNamee. And Clemens has made it known that he won't admit to having lied about or used steroids, so it's difficult to craft a deal minus those integral elements.

The other wild card is if grand jurors are so frustrated with conflicting testimony -- at the least, Canseco and McNamee are known to have told diametrically opposing stories about whether Clemens attended a 1998 pool party at Canseco's South Florida home -- they decide against returning an indictment. A related possibility would be that prosecutors elect not to take the case to trial out of concerns about eventually winning a conviction.

McNamee's attorney, Richard Emery, suggested Thursday that the long-playing proceedings will ultimately support his client's position: "It strikes me that the process is moving forward, and I'm still optimistic it will result in a just ending.''

Asked if that meant an indictment, the attorney said, "Well, I always said Brian did not lie and Clemens did, so you can infer from that.''

McNamee, a one-time New York City cop and former close friend of Clemens, said in the Mitchell report that he injected the 354-game winner with steroids and HGH at least 16 times in 1998, 2000 and 2001. He repeated the claim under oath before Congress, but Clemens, also under oath, adamantly denied the allegations.

The question still to be answered is who perjured himself -- the personal trainer or the star pitcher?

Hardin, Clemens' Houston-based attorney, declined to be interviewed for this story, but he's acknowledged the likelihood of his client to be indicted.

Should there be a trial, Clemens' lawyers are certain to bring up the fact McNamee has said he stopped supplying their client steroids in 2001. They'll point to Clemens' 74-39 won-loss record in six seasons after the split -- including a 2004 Cy Young season in Houston at age 42 -- and challenge McNamee's premise that Clemens used drugs to prolong his career. Further, the Clemens camp is likely to try shredding McNamee's credibility, graphically laying out for a jury his alleged history of lying.

Outside the federal courthouse Thursday, Canseco, a Clemens friend, branded McNamee an "absolute liar.'' Canseco's attorney, Gary Holmes, piled on McNamee, saying "the credibility of his testimony would be at issue'' during trial.

McNamee will surely be prepped for the attacks, should he be called to testify as a witness during a trial.

"That is what they said in the press,'' Emery, his attorney, said of the Clemens camp's strategy. "The point is there is a lot of evidence that corroborates Brian. So I am not worried about that.''

Some of the evidence is believed to include bloody gauze, vials and needles that McNamee claims contained steroids and Clemens' DNA. McNamee kept the decade-old evidence in a FedEx box at his New York home and handed it over to investigators after the probe began.

At least two people close to McNamee told ESPN.com he kept the evidence at his now ex-wife's suggestion.

[+] EnlargeRusty Hardin and Roger Clemens
Scott J. Ferrell/Congressional Quarterly/Getty ImagesRusty Hardin, Clemens' Houston-based attorney, seen standing at left, would likely put on a spirited defense if the case goes to trial.

"He did it because his wife was on him to protect himself,'' said Kirk Radomski, who supplied McNamee steroids. "The idea was to have it in case anybody tried to screw with him.''

McNamee's attorney refused to discuss the evidence.

Because prosecutors have reached out in recent weeks to people previously told about the existence of the materials, some grand jury observers assume whatever McNamee provided authorities must be reasonably significant. One of those who allegedly told, a Wall Street investment manager formerly trained by McNamee, appeared before the grand jury in April. McNamee is known to have told at least three other people about the waste materials he kept.

For some in the Clemens camp, the Thursday appearance by Canseco signaled the government is beginning to wrap up its case. The former slugger and self-proclaimed "godfather of steroids'' consistently has said that he is unaware of Clemens' having used performance-enhancing drugs. His appearance fits nicely under the government's ethical obligation to present evidence favorable to Clemens, while at the same time locking him into his testimony in advance of a possible trial.

As for Clemens, he was advised the night before the Mitchell report went public of the potential legal pitfalls if he were found to have lied about using steroids or human growth hormone. Then, and ever since, he has steadfastly stood by his story. With informal public opinion polls consistently running strongly against him, he may need a trial to prove his innocence.

Mike Fish is an investigative reporter for ESPN. He can be reached at michaeljfish@gmail.com.

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