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.