By Michael McCann
March 18, 2009

With Barry Bonds' perjury trial postponed until later this year, the other headliner in baseball's Steroid Era takes center stage. Roger Clemens remains the subject of a grand jury proceeding, which centers on whether Clemens knowingly lied to Congress in February 2008. If the grand jury finds there is probable cause that Clemens knowingly lied, then it will indict Clemens for perjury and he would then face a federal trial. Clemens is also the plaintiff in a defamation lawsuit against his former trainer, Brian McNamee, who has been the leading source of evidence connecting Clemens to steroids. The civil lawsuit is being heard in a federal district court in Houston, Texas.

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. Assistant U.S. attorney Daniel Butler, who last year successfully prosecuted the late Deborah Jean Palfrey ("the D.C. Madam") for racketeering and money-laundering, has led the government's efforts against Clemens.

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 Greg Anderson's refusal to testify against Bonds; Clemens' former trainer, McNamee, has clearly adopted a different approach toward his former client.

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, Rusty Hardin, would be to attack McNamee's drug paraphernalia evidence. While the evidence would almost certainly be admissible, a jury may believe that it is not credible. Hardin could argue the evidence appears incriminating only because McNamee mishandled or tampered with it. Clemens has acknowledged that McNamee injected him with Vitamin B12, a legal substance, meaning Hardin could contend that McNamee tampered with innocent syringes that contain traces of his blood. McNamee, a former New York police officer with a questionable past (see Tom Verducci and Joe Torre's The Yankees Years), would seemingly possess the know-how and possible lack of ethics necessary to accomplish that task. Moreover, given the high threshold of "beyond a reasonable doubt" needed for a conviction, Hardin would only need to plant some doubt in jurors' minds and Clemens would be poised to walk.

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 Miguel Tejada recently pled guilty to. Pleading guilty to perjury would still subject Clemens to a possible prison sentence of about a year, whereas the misdemeanor would likely lead him to probation or to a very short sentence.

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 U.S. District Judge Keith Ellison's chambers. Ellison is hearing Clemens' slander lawsuit against McNamee. To prevail, Clemens must show by a preponderance of evidence (i.e., more likely than not) that McNamee's statements were untrue, injured Clemens' reputation and exposed him to public ridicule. As a public figure, Clemens has the added burden of showing that McNamee had actual malice (essentially meaning knowingly lying) when claiming that Clemens used steroids. If Clemens prevails, he would be awarded monetary damages and would receive a legal boost, though his criminal proceedings remain separate.

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 Jon Heyman. The primary basis for the exclusion is that the statements took place in New York and there is a lack of personal jurisdiction between McNamee and Texas for those statements. Put differently, Ellison concluded that his court in Texas lacks the authority to sanction McNamee for his actions in New York.

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 Matthew Parrella warned McNamee that his status as a mere witness was at least in part contingent upon McNamee truthfully speaking with the Mitchell Commission, Ellison has provided immunity to statements made by McNamee to the Mitchell Commission.

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 Andy Pettitte in Houston between 1999 and 2004 have not been excluded because, according to Ellison, a reasonable jury could interpret those statements "in a variety of ways, based on the witnesses' credibility." In an affidavit, Pettitte claims that McNamee told him that he injected Clemens with performance-enhancing drugs. Clemens could thus still prevail because of McNamee's claims to Pettitte.

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.

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