Clemens Retrial Set to Begin With Prosecutors on Notice

Roger Clemens

The New York Times on April 12, 2012 released the following:


WASHINGTON — After bungling its first attempt at prosecuting Roger Clemens on charges that he lied to Congress about his steroid use, the government on Monday will start its second effort to convict him in federal court.

Like the initial trial last July, this one is expected to unfold over four to six weeks before Clemens — one of baseball’s greatest pitchers — learns his fate. And like the previous trial, the testimony of one man, Yankees pitcher Andy Pettitte, could turn out to be the strongest evidence against Clemens.

Yet prosecutors are likely to approach this do-over effort a little differently than the first attempt, considering how their big error during Clemens’s first trial nearly derailed their entire case. Judge Reggie Walton of United States District Court declared a mistrial after only two days of testimony because the government showed jurors evidence that he had deemed inadmissible.

“The government starts out with at least one strike against it because of what it did last time, and that can only be good for the defense,” said Alan M. Dershowitz, a Harvard law professor who teaches a course called the Law of Baseball. “I think the government will be very gun-shy this time. You will see the tamest prosecutors ever.”

But the prosecutors still want to win, probably more than ever — and not just to redeem themselves after their public embarrassment.

The federal government is quite aware that it has a flawed track record when it comes to investigating and prosecuting high-profile athletes accused of crimes related to performance-enhancing drug use. It has spent millions of dollars over the better part of a decade only to have several high-profile outcomes fall well short of the punishment it sought.

Last year, Barry Bonds, who holds the major league record for home runs in a season and a career, was convicted on only one of five counts that stemmed from the Bay Area Laboratory Co-operative steroids investigation. Found guilty of obstructing justice, Bonds was sentenced to what prosecutors considered a lenient two years of probation and six months of home confinement. He is appealing the conviction.

In addition, the federal government this year dropped its nearly two-year drug investigation of Lance Armstrong, the seven-time Tour de France winner, with hardly an explanation as to why it did so.

“Having gone this far, after all that has happened, the government has to win the Clemens case,” Dershowitz said. “But they have to win fairly.”

Clemens, a seven-time Cy Young Award winner, has been charged with perjury, making false statements and obstruction of Congress. He faces a maximum of 30 years in prison if convicted on all counts. The government contends that Clemens used performance-enhancing drugs, including steroids and human growth hormone, during his career and that he lied about that drug use when he testified to Congress in 2008.

The main arguments on both sides are expected to be the same as they were last summer. Brian McNamee, Clemens’s former trainer, is expected to testify that he gave Clemens performance-enhancing drugs. Pettitte, Clemens’s former teammate and former close friend, is expected to testify that Clemens admitted to him that he had used human growth hormone.

Lawyers for Clemens have called McNamee a liar and have contended that Pettitte did not accurately remember his conversation with Clemens.

“To some extent, it’s still a he said, she said,” said Mathew Rosengart, a former federal prosecutor who is not involved with the case. “It will all come down to corroborating evidence.”

But one big difference this time around, some legal experts said, is that Judge Walton has shown disdain not only for the case, but for the prosecutors as well.

An irritated Walton last July scolded the prosecutors for showing jurors inadmissible evidence, saying even a first-year law student would have avoided the gaffe. He said he found it difficult to believe that the prosecutors had not made the mistake on purpose.

He also went as far as to raise the question of whether the government should reimburse Clemens for the money he spent on the mistrial.

Daniel C. Richman, a criminal law professor at Columbia University, said Walton might make it even harder on the prosecutors to succeed this time around.

“It appears that he has real issues with the government’s pursuit of the case and threw a brushback pitch at them last time,” Richman said. “Had this been a murder case, I doubt that the judge would have talked about reimbursement for the defendant. It shows a level of solicitude for the defendant that you don’t normally see.”

Richman added that judges have “an enormous amount of discretion” on how they manage trials and what evidence they let in, and that it often reflects what they think of the case. In turn, the judge’s attitude can rub off on the jury.

“Juries are very open to taking signals from judges because the judge is the one person they respect as neutral,” he said. “If the judge doesn’t like the case, they’ll figure it out, and an experienced judge is certainly aware of that.”

Still, the prosecution has said it is confident in its case. It contends it has “overwhelming evidence” against Clemens, including cotton balls and syringes with traces of steroids and Clemens’s DNA.

It also has the potentially powerful testimony of Pettitte, a highly respected player and one long prized by his teammates for being loyal and accountable. Pettitte and Clemens were teammates for nine seasons, with the Yankees and the Houston Astros.

Last summer, Pettitte was in his first year of retirement, and his testimony, had it taken place, would probably not have been a major distraction for the Yankees. This time, though, the circumstances are different.

Pettitte decided to come out of retirement last month and rejoin the Yankees, and he is currently pitching in the team’s minor league system as he works his way back into pitching shape.

He could be ready to pitch in the major leagues by the beginning of May, meaning he may be back with the Yankees when he is summoned to testify against Clemens. If so, the Yankees and Pettitte would find themselves in an extremely uncomfortable position, with reporters, fans and players all aware that Pettitte could deal a potentially serious blow to a former teammate.

Pettitte’s testimony is crucial to the government’s case, Walton said, so crucial that it is what caused the mistrial in the first place.

Walton stopped the trial last summer after the jury was shown evidence bolstering Pettitte’s testimony. The prosecution had played a videotape for the jury that contained a part of the 2008 Congressional hearings on performance-enhancing drug use in baseball.

The tape showed Rep. Elijah Cummings, Democrat of Maryland, making positive comments about Pettitte’s credibility and also showed Cummings reading an affidavit from Pettitte’s wife, Laura. In the affidavit, she said that her husband had told her that Clemens had confided in him about his use of human growth hormone.

Her testimony had been deemed inadmissible by Walton the week before, and the videotape thus incurred his wrath and quickly led to the mistrial.

Now comes the sequel.”


Douglas McNabb – McNabb Associates, P.C.’s
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