News Guide: Key details in Clemens perjury trial

April 16, 2012

Associated Press on April 16, 2012 released the following:

“WASHINGTON (AP) — Roger Clemens’ second perjury trial began Monday, following a mistrial in the first case when prosecutors showed inadmissible evidence to the jury.

The famed former pitcher is accused of ying to Congress in 2008 when he said he never used performance-enhancing drugs.

The new trial, which begins with jury selection, is expected to last four to six weeks.

Some key data and figures in the case:

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CHARGES:

Three counts of making false statements, two counts of perjury and one count of obstruction of Congress.

POSSIBLE PENALTIES:

If convicted on all counts, Clemens could face up to 30 years in prison and a $1.5 million fine. But with no prior criminal record, under U.S. sentencing guidelines, he would probably face no more than 15 to 21 months in prison.

WITNESSES

Former baseball stars Barry Bonds and Jose Canseco were on the list of 104 potential witnesses or people who might be mentioned at trial that was read to the jury pool. In addition to Bonds and Canseco, prosecutors said they might call baseball commissioner Bud Selig and New York Yankees general manager Brian Cashman. Clemens’ attorneys said they might call his former teammates Paul O’Neill, Jorge Posada and Mike Stanton and baseball writer Peter Gammons.

JURY SELECTION:

U.S. District Judge Reggie Walton asked 90 potential jurors 86 yes-or-no screening questions designed to uncover personal history or attitudes, medical problems or scheduling conflicts that might reveal potential prejudice or an inability to serve. Among them: “Do you have any opinions about Major League Baseball – good, bad or whatever?” Jury pool members who had “yes” answers marked them on a sheet of paper. The lawyers and judge then began questioning them individually about those answers. In addition to people disqualified by the judge for cause, the defense will be allowed reject 10 potential jurors and the prosecutors can veto six – without explanation – until 12 are seated. Then each side will get two such unexplained strikes until four alternates are chosen, in case any jurors have to drop out during the trial.

THUMBNAILS:

– Roger Clemens: The famed pitcher, who won a record seven Cy Young Awards, said he never used steroids or human growth hormone during his baseball career. But prosecutors maintain he lied and broke the law when he made that denial under oath to a congressional committee in 2008.

– Brian McNamee: The strength trainer who worked out with Clemens for a decade, he helped mold The Rocket into one of the most feared power pitchers in the major leagues, even into his 40s. McNamee maintains he injected Clemens with steroids and human growth hormone – and saved the needles, which will be evidence at trial. He’ll be the prosecution’s most important witness.

– Andy Pettitte: The pitcher and former teammate of Clemens – with both the New York Yankees and Houston Astros – is the only person besides McNamee who says Clemens acknowledged using drugs. Clemens has said his former friend is “a very honest fellow” but insists he “misremembers” their conversation, said to have taken place in 1999 or 2000.

– Kirk Radomski: The former batboy with the New York Mets was the primary source behind the 2007 Mitchell Report examining the use of performance-enhancing drugs in Major League Baseball. Radomski has admitted providing drugs to dozens of players, and McNamee says he got the drugs for Clemens from Radomski.

– U.S. District Judge Reggie Walton: The judge is a former athlete himself – he went to college on a football scholarship. In declaring a mistrial last year, Walton blamed prosecutors for a mistake that a “first-year law student” wouldn’t make. No stranger to high-profile cases, he presided over the trial of former Vice President Dick Cheney’s onetime chief of staff, Scooter Libby.

– Rusty Hardin: Clemens’ lead attorney has a reputation for winning jurors over with plenty of Southern charm and colorful quips aimed to bring down opponents.

– Assistant U.S. Attorney Steven Durham: One of two prosecutors who worked on the original case last summer, which ended in a mistrial because prosecutors showed the jury inadmissible evidence, Durham is chief of the public corruption unit at the U.S. attorney’s office in Washington.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Federal Indictment

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Barry Bonds and Jose Canseco Among Potential Government Witnesses in Roger Clemens Federal Criminal Trial

April 16, 2012

Associated Press on April 16, 2012 released the following:

“Bonds among potential witnesses in Clemens trial

By FREDERIC J. FROMMER

WASHINGTON (AP) — Prosecutors said they might call former baseball players Barry Bonds and Jose Canseco, current baseball commissioner Bud Selig and New York Yankees general manager Brian Cashman as witnesses in the Roger Clemens perjury case. The defense said it might call former Clemens teammates Paul O’Neill, Jorge Posada and Mike Stanton, and baseball writer Peter Gammons.

Those were among the more than 100 potential witnesses read Monday on the first day of jury selection in Clemens’ new trial, with a larger prosecution team taking on the famed pitcher following last year’s embarrassing mistrial. The government will again try to prove Clemens lied to Congress when he said he never used performance-enhancing drugs.

The legendary former pitcher, who famously reveled in staring down hitters, will face a prosecution lineup of five lawyers – more than double the two from the first trial.

Last July, U.S. District Judge Reggie Walton declared a mistrial on only the second day of testimony, after prosecutors showed jurors evidence that had been ruled inadmissible. Walton also will preside over the new trial, which is expected to last four weeks to six weeks.

The Clemens team won’t be outgunned. It has six lawyers working on the case, led by Houston lawyer Rusty Hardin, whose Rusty Hardin & Associates has represented sports stars such as quarterback Warren Moon, baseball star Wade Boggs and NBA great Scottie Pippen, each a Hall of Famer.

Both Hardin and the U.S. attorney’s office for the District of Columbia, which is prosecuting the case, declined to comment for this story, citing Walton’s gag order.

Michael McCann, a law professor and director of the sports law institute at Vermont Law School, said it was unusual to have so many prosecutors “for a perjury case that isn’t terribly complicated.”

Prosecutors know that some potential jurors might object to spending too much money on the case because Walton advised them last year that some of the original jurors thought it was would be a waste of money to retry Clemens.

McCann said the department has extra motivation to convict Clemens, given the amount of money spent on the case and the underwhelming outcome of its more-than-seven-year investigation of Barry Bonds over steroids.

Bonds, baseball’s career home run leader, was found guilty last year on just one count, obstruction of justice, for giving an evasive answer to a grand jury when asked about drug use. He received a sentence of 30 days confinement at his estate in Beverly Hills. Prosecutors dropped three other counts charging Bonds with making false statements after the jury deadlocked on those charges. Bonds has appealed his conviction.

“For the government to lose this case after obtaining a very mild victory against Bonds,” McCann said, “would invite a lot of questions about the appropriateness of these prosecutions.”

In addition, the Justice Department recently closed, without bringing any charges, an expensive two-year, multi-continent investigation of possible drug use by Lance Armstrong, the cyclist who beat cancer and won the Tour de France seven straight times.

The essence of the Clemens case remains the same: The seven-time Cy Young Award winner is charged with perjury, false statements and obstruction of Congress for telling a House committee under oath, in both a public hearing and in a deposition with committee staff, that he hadn’t used steroids or human growth hormone during his 24-season career.

The key witness for the government will be Clemens’ former strength trainer, Brian McNamee, who says he injected Clemens with steroids and human growth hormone, and even kept the used needles that will be entered as scientific evidence at trial.

Clemens’ lawyers will seek to discredit McNamee, who provided drugs to several professional baseball players and has acknowledged he hasn’t always told the truth about Clemens’ drug use and other matters. McNamee initially denied giving Clemens drugs, before admitting to federal agents he injected the pitcher. The defense team has said that the trainer fabricated the evidence.

Harder to discredit will be another prosecution witness, Andy Pettitte, a former Clemens teammate who recently came out of retirement to mount a comeback attempt with the New York Yankees. Pettitte says that Clemens, in a private conversation in 1999 or 2000, acknowledged using HGH. Clemens has said Pettitte “misremembers” their conversation.

If convicted on all six charges, Clemens faces a maximum sentence of up to 30 years in prison and a $1.5 million fine. Maximum penalties are unlikely because Clemens doesn’t have a criminal record, but Walton made plain at the first trial that Clemens was at risk of going to jail.

Under U.S. sentencing guidelines, Clemens probably would face up to 15 months to 21 months in prison.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Feds bulk up to retry Clemens over drug testimony

April 16, 2012

Associated Press on April 16, 2012 released the following:

“By FREDERIC J. FROMMER

WASHINGTON (AP) — The Justice Department, embarrassed by blundering into a mistrial of Roger Clemens last year, has added more prosecutors as it tries again to convict the famed pitcher of lying to Congress when he said he never used performance-enhancing drugs.

Jury selection in the new trial begins Monday.

The legendary former pitcher, who famously reveled in staring down hitters, will face a prosecution lineup of five lawyers – more than double the two from the first trial.

Last July, U.S. District Judge Reggie Walton declared a mistrial on only the second day of testimony, after prosecutors showed jurors evidence that had been ruled inadmissible. Walton also will preside over the new trial, which is expected to last four weeks to six weeks.

The Clemens team won’t be outgunned. It has six lawyers working on the case, led by Houston lawyer Rusty Hardin, whose Rusty Hardin & Associates has represented sports stars such as quarterback Warren Moon, baseball star Wade Boggs and NBA great Scottie Pippen, each a Hall of Famer.

Both Hardin and the U.S. attorney’s office for the District of Columbia, which is prosecuting the case, declined to comment for this story, citing Walton’s gag order.

Michael McCann, a law professor and director of the sports law institute at Vermont Law School, said it was unusual to have so many prosecutors “for a perjury case that isn’t terribly complicated.”

Prosecutors know that some potential jurors might object to spending too much money on the case because Walton advised them last year that some of the original jurors thought it was would be a waste of money to retry Clemens.

McCann said the department has extra motivation to convict Clemens, given the amount of money spent on the case and the underwhelming outcome of its more-than-seven-year investigation of Barry Bonds over steroids.

Bonds, baseball’s career home run leader, was found guilty last year on just one count, obstruction of justice, for giving an evasive answer to a grand jury when asked about drug use. He received a sentence of 30 days confinement at his estate in Beverly Hills. Prosecutors dropped three other counts charging Bonds with making false statements after the jury deadlocked on those charges. Bonds has appealed his conviction.

“For the government to lose this case after obtaining a very mild victory against Bonds,” McCann said, “would invite a lot of questions about the appropriateness of these prosecutions.”

In addition, the Justice Department recently closed, without bringing any charges, an expensive two-year, multi-continent investigation of possible drug use by Lance Armstrong, the cyclist who beat cancer and won the Tour de France seven straight times.

The essence of the Clemens case remains the same: The seven-time Cy Young Award winner is charged with perjury, false statements and obstruction of Congress for telling a House committee under oath, in both a public hearing and in a deposition with committee staff, that he hadn’t used steroids or human growth hormone during his 24-season career.

The key witness for the government will be Clemens’ former strength trainer, Brian McNamee, who says he injected Clemens with steroids and human growth hormone, and even kept the used needles that will be entered as scientific evidence at trial.

Clemens’ lawyers will seek to discredit McNamee, who provided drugs to several professional baseball players and has acknowledged he hasn’t always told the truth about Clemens’ drug use and other matters. McNamee initially denied giving Clemens drugs, before admitting to federal agents he injected the pitcher. The defense team has said that the trainer fabricated the evidence.

Harder to discredit will be another prosecution witness, Andy Pettitte, a former Clemens teammate who recently came out of retirement to mount a comeback attempt with the New York Yankees. Pettitte says that Clemens, in a private conversation in 1999 or 2000, acknowledged using HGH. Clemens has said Pettitte “misremembers” their conversation.

If convicted on all six charges, Clemens faces a maximum sentence of up to 30 years in prison and a $1.5 million fine. Maximum penalties are unlikely because Clemens doesn’t have a criminal record, but Walton made plain at the first trial that Clemens was at risk of going to jail.

Under U.S. sentencing guidelines, Clemens probably would face up to 15 months to 21 months in prison.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Roger Clemens’ second trial starts Monday

April 16, 2012

The Washington Post on April 15, 2012 released the following:

“By Ann E. Marimow and Del Quentin Wilber

Former pitching powerhouse Roger Clemens returns to the District’s federal courthouse Monday to be tried for a second time on charges that he lied to Congress about using performance-enhancing drugs.

The baseball legend’s first trial ended after just two days last summer when the judge declared a mistrial because of a prosecutorial error.

Now the Justice Department will have another chance to try Clemens, an 11-time all-star accused of perjury, obstruction of Congress and making false statements. Clemens could face 30 years in prison if convicted on all charges.

The high-stakes trial begins Monday with jury selection, a process expected to include lengthy questioning of the backgrounds and biases of more than 80 Washingtonians. Some legal observers familiar with the case said the retrial gives the government an advantage because prosecutors have had a preview of the defense team’s approach and time to retool and prepare witnesses.

The government has the “upper hand” after hearing the defense’s road map for the case the first time around, said Steven Levin, a former federal prosecutor and criminal defense lawyer.

But Michael Volkov, another former federal prosecutor, said the government must overcome the challenge of convincing jurors of the importance of bringing such a case when no one was injured and no major national policy was affected by the allegations.

Volkov suggested that the government would have to tie its case to broader concerns about steroid abuse in professional sports and its potential impact on children.

“The question is, how do prosecutors make people care?” Volkov said. “Everybody believes Congress lies to them anyway.”

In their first round of opening statements last July, prosecutors said Clemens used performance-enhancing drugs to prolong his storied career and then lied about it to a House committee to shore up his legacy.

Clemens, 49, won an unprecedented seven Cy Young awards during his 24-year career with the Boston Red Sox, Toronto Blue Jays, New York Yankees and Houston Astros. His defense team, led by Rusty Hardin, said Clemens had a track record as a hard-working professional who was clean, and never lied.

A central figure in the case is Clemens’s former trainer, Brian McNamee, who told Congress he had injected Clemens with performance-enhancing drugs. Clemens’s lawyers have said McNamee, whose story about steroids has changed over the years, cannot be trusted.

Finding an impartial jury for such a well-publicized case could be tricky. The trial coincides with the start of the Major League Baseball season and the return to the sport of pitcher Andy Pettitte, a former Clemens teammate and friend who may be a key government witness.

“It makes a difficult process exponentially more difficult,” said Andrew White, a former federal prosecutor.

The Justice Department initially took the case after Congress requested an investigation into Clemens’s testimony to the House Committee on Oversight and Government Reform in 2008. Clemens denied using steroids or human growth hormone following a 2007 report by former senator George Mitchell that identified Clemens and dozens of other players as having taken banned substances.

Major League Baseball has since 1971 prohibited the use of steroids and human growth hormone — known as HGH — without a prescription. The league explicitly banned steroids in 1991 and HGH in 2005.

U.S. District Judge Reggie B. Walton declared a mistrial last July after the government showed a video clip that included barred evidence.

Prosecutors led by Steven Durham and Daniel Butler played a videotaped segment of congressional testimony that referenced Pettitte’s wife. Andy Pettitte, who recently came out of retirement to rejoin the Yankees and was also named in Mitchell’s report, told congressional investigators Clemens confided in him about taking a performance-enhancing substance. He said he shared the conversation with his wife.

Laurie Pettitte gave Congress an affidavit backing her husband’s claims, and Walton ruled before the first trial that prosecutors could not raise her statements before the jury.

While Walton said he was troubled by the government’s misstep, he ruled that a second trial would not violate Clemens’s constitutional protection against double jeopardy, which ensures defendants are not subjected to endless prosecutions.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Clemens Retrial Set to Begin With Prosecutors on Notice

April 13, 2012
Roger Clemens

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

“By JULIET MACUR

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.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Roger Clemens’ Federal Criminal Case Update

August 20, 2011
Roger Clemens

Main Justice on August 19, 2011 released the following:

Prosecutors Say Clemens Trying To Gain From Unintended Mistakes

Barring a retrial for Roger Clemens would hand the former baseball star “an unwarranted windfall” from inadvertent mistakes made during the first case against him, federal prosecutors argued in a brief filed Friday.

The brief came in response to a motion filed by Clemens’ attorneys seeking to prevent a retrial by arguing the government intentionally violated rules imposed by District Judge Reggie Walton, who declared a mistrial July 14 after prosecutors played a video that contained evidence Walton had previously ruled inadmissible.

That evidence included testimony from the wife of former pitcher Andy Pettitte, which suggested that Clemens had talked with Pettitte about using steroids. The video shown by prosecutors – a recording of Clemens’ 2008 testimony before Congress – showed Rep. Elijah E. Cummings (D-Md.) making a reference to the conversation.

The video was strike two for the prosecution, which had also alluded to the conversation during opening statements.

But in their motion, Justice Department attorneys said the video had already been prepared when Walton made his ruling on admissibility, and that they hadn’t looked to see whether a reference might be buried in a question from the congressman.

“The government’s error was a mistake, not misconduct, and certainly not misconduct intended to provoke a mistrial,” prosecutors wrote. “As government counsel informed this court when the video clip mistake occurred: ‘There was no intention to run afoul of any court ruling.'”

A motion hearing on the issue is scheduled for Sept. 2.”

Attached is Roger Clemens’ filing on 7/29/2011 with its exhibits:

Attached is the government’s response on 8/19/2011:

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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Roger Clemens in Federal Court Regarding Attorney Conflict of Interest

February 3, 2011

Ex-New York Yankees pitcher Roger Clemens, accused of lying to Congress about steroid use, told a federal judge he won’t challenge a possible conviction on grounds involving his lawyers’ potential conflict of interest.

Clemens, responding to questions from U.S. District Judge Reggie Walton during a hearing yesterday in Washington, indicated he understood the ramifications of the potential conflict and waived his right to contest it. By agreeing, Clemens signaled that he wants to keep his current legal team.

Clemens was asked directly whether he is willing to waive any potential conflict of interest, to which he responded in the affirmative.

U.S. prosecutors requested the hearing, saying Clemens’ lead lawyer, Rusty Hardin, and his Houston-based law firm previously did work on behalf of Yankees pitcher Andy Pettitte. That work may bar Hardin and his firm from cross-examining Pettitte, a government witness, if the criminal case against Clemens proceeds to trial, prosecutors said.

Hardin said during the 20-minute hearing that a lawyer from another firm had been retained specifically to avoid any conflicts that might arise from the previous work for Pettitte.

Clemens, 48, was indicted in August on one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury. Clemens, who also played for the Boston Rex Sox, Toronto Blue Jays and Houston Astros over a 24-year Major League Baseball career, pleaded not guilty. He faces a $1.5 million fine and a maximum of 30 years in prison if convicted on all charges. Jury selection is scheduled to begin July 6.

The allegations of drug use were made by Brian McNamee, a former trainer to both Clemens and Pettitte.

In an interesting twist at the hearing, Judge Walton admitted that while he was visiting his hometown in Donora, Pennsylvania, a former Cincinnati Reds outfielder Ken Griffey Sr., who Walton said he “played ball with,” came up to him and asked the judge whether he was handling the Clemens case. Walton said he was and that Griffey responded, “He’s a good guy.” Walton said he told Griffey that he couldn’t talk about the case.

Walton asked whether either of the parties would object to him continuing to preside over the case because of the incident. Both Assistant U.S. Attorney Daniel Butler and the defense said they were fine with it. Therefore, both parties will not be able to raise a subsequent objection regarding the judge’s neutrality.

Clemens, in a January 21 filing, asked Walton to dismiss the charges, saying the indictment doesn’t explain how he allegedly obstructed a congressional investigation in 2008 when he denied using performance-enhancing drugs.

Walton has yet to rule on the motion to dismiss. At this point, it looks like Clemens is going to trial this summer, where a jury will determine his guilt or innocence.

Douglas McNabb and other members of the firm practice and write extensively on matters involving Federal Criminal Defense, Interpol Litigation, International Extradition and OFAC Litigation.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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