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Clemens' defense might have upper hand
Roger Clemens’s legal team benefits from something that the hurler had access to during his 24-season career.
A mistrial was declared on the second day of testimony in the perjury and obstruction trial of the seven-time Cy Young Award winner last July. While the attempts by Clemens legal team to thwart a new trial failed, the defense enters the proceedings -- which began with jury selection on Monday -- grasping an edge it didn’t have in the first.
“The defense is certainly better prepared now,” said former assistant US attorney Marc Mukasey. “They have the benefit of seeing the whole witness list, the exhibits list and they’ve been able to read and evaluate the opening statements. This second time around, the government’s case probably hasn’t gotten any stronger, but he defense will certainly know what’s coming next."
Clemens, 49, still faces the same six felony counts -- three for allegedly making false statements, two for perjury and one count of obstruction of Congress -- and the same penalties from that first trial if convicted, including a combined maximum sentence of 30 years in prison and up to a $1.5 million fine. (Under sentencing guidelines, Clemens would likely only get a maximum of 21 months if convicted of each count.) The charges are all related to what he testified to under oath in front of the House Committee on Oversight and Government Reform in February 2008.
Prosecutors showed an inadmissible video clip in the first trial and US District Court Judge Reggie Walton called an immediate mistrial. Walton later ruled that double jeopardy wasn’t attached and set a new trial date, although the judge passed along a conversation he had with a former law clerk about how some members of the jury he polled felt about the prosecution of Clemens.
“Some of the jurors had said that they felt it was a waste of taxpayers' money at a time when we have significant fiscal problems in our country to prosecute this case again because they felt that Congress has all of these other issues on their plate,” Walton told the lawyers in his chambers last September. “. . . Why are we spending money prosecuting this case?”
The prosecution -- which has swelled from two to four assistant US attorneys -- decided to move forward anyway.
Much like the first trial, this new one will hinge on a handful of elements: the testimony of former teammate Andy Pettitte and former friend and personal trainer Brian McNamee along with DNA evidence.
“The evidence hasn’t changed,” said Peter Keane, dean emeritus of the Golden Gate University School of Law in San Francisco. “The manner of which the defense can tactically and strategically counter the evidence, however, has changed. They have been in the position to scrutinize everything. Still, strategies and tactics only go so far.”
Pettitte, who was also a teammate of Clemens with the Houston Astros and a current member of the Yankees’ pitching staff, is the only person outside of McNamee who can testify that Clemens discussed the use of PEDs. After he was fingered along with 85 other players in the Mitchell Report that detailed baseball’s steroid era, Pettitte admitted to using HGH in 2002 and 2004.
Clemens, however, went a different direction: he denied everything pertaining to him in the independent report led by former Sen. George Mitchell that was released in December 2007. Clemens was invited -- not subpoenaed -- to appear before the Reform Committee, meaning it was his choice to go under oath and say Pettitte “misremembered” and counter McNamee’s claims.
Discrediting McNamee will be a much easier task for Clemens’ lawyers and arguably more vital.
Not only will McNamee, a former New York City police officer who later became a strength coach, testify he provided PEDs to Clemens, but he turned over vials, syringes and gauze that allegedly had Clemens’ DNA and fingerprints on them. The exhibit list filed by prosecutors earlier this month lists a dozen reports from DNA labs from what was collected by McNamee.
Clemens' legal team is expected to challenge the chain of custody of the items -- including the used syringes that were stuffed inside beer cans for years -- along with the McNamee’s character. In court on Friday, one of Clemens’ attorneys reportedly hinted that McNamee’s divorce papers could call how those items were stored into question.
“With that evidence along with Pettitte’s testimony, I think Clemens is in trouble,” Keane said.
Clemens has steadfastly held true to his contention that he was only injected with a Vitamin B-12 and Lidocaine shots, not the steroids and human growth hormone he was alleged to have used later in his career. Clemens also declined to accept a plea deal that would have resulted in no jail time if he admitted in court that he used banned substances.
It’s probably unlikely he would take the stand in his own defense, although his legal team has had a hard time muzzling their client -- at least until Walton issues a gag order in the case.
“It could still be a game-time decision,” said Mukasey, a partner in the law firm Bracewell & Giuliani. “It’s a decision reserved for the defendant. He needs to make that himself with the appropriate guidance of his lawyers. Roger Clemens has been outspoken and adamant throughout the investigation. He won’t be shy telling the lawyers what he wants to do.”
Basically, Clemens will be able to shake off the sign and call his own pitch.
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