What can we expect from the criminal and civil proceedings?
At the outset, it should be noted that grand jury proceedings are famously stacked in favor of the prosecution. Only the prosecutor has the right to call witnesses -- who are not entitled to legal counsel while testifying -- and to present evidence, which can be done without adhering to many of the rules contained in the Federal Rules of Evidence. In contrast, the target of the proceedings (i.e., Clemens) has no formal role and is more like a bystander. Grand jury proceedings bear little resemblance to trials that you see on Court TV or those normally depicted on-screen.
With those points acknowledged, a grand jury has been convened in Washington, D.C. to investigate Clemens. It has reportedly been convened since January.
Because of their one-sided nature, grand jury proceedings are supposed to be kept completely secret. Nonetheless, some basic information about the government's evidence against Clemens has been leaked. Earlier this month, for instance, it was reported that the government has identified performance-enhancing drugs on drug paraphernalia preserved by McNamee and that allegedly contains traces of Clemens' blood (and thus DNA).
It remains to be seen whether Clemens will be afforded the opportunity to testify in the grand jury proceeding. He has no legal right to testify; only the government can invite him. Such an opportunity could enable Clemens to better explain his comments to Congress. Then again, given the wide disparity between his impassioned denials and the evidence indicating that he used steroids, it would seem difficult for Clemens to explain away his remarks. Along those lines, the prosecution might want Clemens to testify in order to generate a separate source of perjury charges: he would have knowingly lied to both Congress and a grand jury. Indicting him for the latter, however, would require another grand jury -- to illustrate, Bonds allegedly committed perjury before a grand jury in 2003 and was later indicted by a separate grand jury in 2007 for the 2003 perjury.
Clemens' grand jury proceeding could go on for some time. Grand jury proceedings can last up to 18 months and even longer with six-month extensions. For comparison, the grand jury which indicted Bonds in November 2007 took approximately 15 months to reach an indictment, though part of that length related to trainer
Given the pro-prosecution nature of grand jury proceedings, the success rate of prosecutors obtaining indictments in perjury cases is extremely high. Coupled with clear evidence suggesting that Clemens committed perjury, it is thus likely that Clemens will be indicted. If so, a trial would then be scheduled and it would likely be heard in the U.S. District Court for the District of Columbia.
Clemens faces better prospects for evading a criminal conviction. The key for Clemens and his attorney,
Although Clemens' chances would be better in a trial than in a grand jury proceeding, the government would still be poised to obtain a conviction in a trial. For starters, and while some attorneys might argue otherwise, the government only seeks indictments that it believes will lead to convictions. It's sometimes said that because grand jury proceedings are so one-sided, the government could even convince a grand jury to "indict a ham sandwich." Yet the government tries to avoid indictments of innocent persons, not only because of concerns of prosecutorial abuse but also because losing a trial reflects poorly on the prosecuting attorneys and the Justice Department. It is not surprising then that the Justice Department, which includes the U.S. Attorney's Office for the District of Columbia, has enjoyed tremendous success prosecuting defendants, with a conviction rate of approximately 90 percent (though perjury convictions are slightly less frequent at approximately 85 percent).
Keep in mind, the success rate of prosecutors in federal cases is based on aggregate data, meaning all defendants. Clemens' wealth and celebrity would propel him into the unique category of celebrity defendants. Celebrity defendants can normally afford top legal teams and some social psychologists believe their fame can sway, even bamboozle, jurors.
Nevertheless, if convicted, Clemens would face a real possibility of prison time, particularly given the gravity of knowingly lying to members of Congress. As a first-time offender, Clemens would be subject to federal sentencing guidelines that call for such felons to serve about two years, 85 percent of which have to be served under federal truth-in-sentencing policies. While federal sentencing guidelines are not mandatory, judges are normally expected to follow them. According to statistics available on the Administrative Office of U.S. Courts' website, 49 out of 64 defendants (77 percent) convicted of perjury between September 2007 and September 2008 were sentenced to prison.
There remains the possibility that Clemens could reach a plea deal with the government, such as by pleading guilty to felony perjury or to misdemeanor counts of making misrepresentations to Congress, which
At this point, however, there is no indication either the government or Clemens would be satisfied with a plea deal. The government would likely be unwilling to let Clemens plea to Tejada's offense, not only because Clemens would probably avoid prison time, but also because Tejada never lied under oath. Tejada's lies were also to Congressional staffers behind doors, whereas Clemens would have directly lied to members of Congress in a nationally-televised hearing. For his part, Clemens seems resolute on proving his innocence.
About 1,400 miles from the grand jury proceeding rests
Unfortunately for Clemens, Judge Ellison recently dismissed most of Clemens' case against McNamee. Ellison has excluded statements made by McNamee to the Mitchell Commission and to Sports Illustrated's
As a separate source of authority for excluding McNamee's statements to the Mitchell Commission, Ellison has cited relevant Texas law holding that statements made to government agencies in relation to legislative, judicial, and quasi-judicial proceedings are entitled to absolute immunity. In part because Assistant U.S. Attorney
The intriguing nature of the Mitchell Commission -- a private group that received the tacit aid of the government -- presents something of a challenge for assessing whether it should be classified as an immunity-qualifying proceeding. Members of the Commission were not acting on behalf of any jury, judge or government agency, nor were they bound by the Federal Rules of Evidence. Instead, they could rely upon the testimony of disreputable persons as well as hearsay and innuendo. On the other hand, some persons interviewed by the Commission did so with the understanding that refusing to truthfully testify could subject them to criminal prosecution. McNamee was such a person.
A portion of Clemens' case remains. McNamee's statements to
Still, the bulk of Clemens' case was dismissed and the already slim likelihood of him prevailing has fallen further. Granted, Clemens' lawyers have asked Ellison to reconsider, but it is highly unlikely that he will. Ellison will likely respond to Clemens' lawyers within the next month, after which a trial could be scheduled for later in the year. Ellison has already ruled that McNamee's statements to Pettitte can be heard by a jury, meaning Clemens should be able to proceed even if Ellison doesn't change his mind.
It remains to be seen whether Clemens would want to proceed on a case so diminished that it would be based entirely on McNamee's statements to Pettitte, Clemens' friend. Theoretically, Clemens could seek a separate slander trial in a New York court to address McNamee's statements to the Mitchell Commission and to Heyman. Ellison dismissed Clemens' claims concerning those statements because they occurred in New York. Ellison's dismissal was made without prejudice, meaning those claims could be filed in New York, but there is no indication that Clemens plans to file a second lawsuit. Such a lawsuit could be blocked by New York's one-year statute of limitations for slander claims, though in assessing the statute of limitations, a New York judge might consider McNamee's decision in December 2008 to file notice preserving his claims under New York law against Clemens.