Arguments conclude in Roger Clemens perjury trial

June 13, 2012

CNN on June 12, 2012 released the following:

“By Paul Courson, CNN

Washington (CNN) — Dueling scientists, a former trainer, friends and family are among the witnesses whose testimony a jury will consider as they decide if famed baseball pitcher Roger Clemens lied to Congress during an investigation of steroid use among major league players.

The case against Clemens involves one count of obstruction of Congress, three counts of making false statements and two counts of perjury. He is not charged with illicit use of performance-enhancing drugs, but his denial of such use is part of the case against him.

Federal prosecutor Courtney Saleski, in closing arguments Tuesday, told the jury Clemens “wanted to protect his brand, he wanted to protect his livelihood,” in denying the use of steroids during a 2008 investigation by the U.S. House of Representatives into the problem.

“He did that at the expense of our Congress. He threw sand in their eyes. He stole the truth from them,” Saleski said.

She said a guilty verdict would give that truth back to lawmakers.

The Clemens defense team disputed whether the government has made its case, telling the jury all the evidence came through a former personal trainer, Brian McNamee, who had incentive to lie.

“You saw Brian McNamee, the only witness in the history of the world who says he gave or saw an injection of that man,” said defense attorney Michael Attanasio. “One person in the entire world.” During closing arguments, the defense cited the lack of corroborating witnesses, which they said would be a basis for reasonable doubt against any conviction.

“McNamee defines reasonable doubt,” Attanasio said, because of perceived inconsistencies, retractions and corrections he made while testifying.

After verbally providing instructions to the jury late Tuesday, U.S. District judge Reggie Walton sent the jury back to begin deliberations, while acknowledging they may only have time to select a foreperson before letting them go for the day.

The trial has run longer than envisioned, and one juror was moved to alternate status Tuesday because of a fellowship in Germany for which he must depart next week. An alternate was then sent back to join the others.

It took about eight weeks for the prosecution and defense to question 46 witnesses, and the most direct conflict came among expert witnesses as to how to interpret a collection of discarded medical items that allegedly link Clemens to steroid use.

Soiled medical wrappings, cotton balls, drug vials and hypodermic needles that McNamee kept were interpreted differently by both sides. Witnesses for the government said genetic material linked with Clemens suggested it was impossible for McNamee to fabricate the evidence.

But defense witnesses on the same topic said storage in a beer can for years allowed commingling and contamination of materials, making reliable conclusions impossible, and the evidence nearly worthless.

“If you have garbage at the start, you’ll have garbage at the end,” said defense expert witness Dr. Bruce Goldberger, who said his lab would refuse to test such materials without a solid basis for their storage and handling before analysis.

Prosecution witness Dr. Cynthia Morris-Kukoski, an FBI toxicologist, said it is not up to the toxicology lab to make judgments about the materials submitted for testing, with their job only to determine the substances and any genetic identifiers involved.

Former teammate and friend Mike Boddicker testified as to whether Clemens had ever accepted injections, providing an eyewitness account that he had. “I think it was either 1989 or 1990,” Boddicker said, referring to their time together with the Boston Red Sox, describing that he “came into the training room, and saw Roger bent over the table with his pants down, getting a shot.”

The vial, Boddicker said, was clearly marked “B-12” a substance said to provide a pick-me-up after a game or workout.

This is the second trial for Clemens. A year ago, a mistrial was declared before the case reached the jury. The government’s lawyers played video evidence the judge had already banned. Prosecutors said it was an editing mistake, but the Clemens defense team suggested prosecutors were unprepared and had gotten off to a bad start.

“This was a mistake, a regretful mistake,” government attorney David Goodhand said in September in arguing for a new trial. But Walton blasted prosecutors for letting inadmissible evidence be shown.

“I would hate to believe they just blatantly disregarded rulings that I made, but it’s hard for me to reach any other conclusion,” Walton said, before rejecting a defense request that he dismiss the indictment entirely. After consideration, Walton then ordered the new trial.

Several pretrial hearings this time included protests from defense attorneys that the prosecution was trying to take advantage of having heard the initial opening statement last summer by the defense. In the latest trial, defense attorneys expressed concern that prosecutors were trying to “do over” certain efforts the defense may have refuted.

Deliberations Wednesday were set to begin at 1:30 p.m.”

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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

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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 Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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.


Prosecutors Poised to Rest in Roger Clemens’ Federal Criminal Trial

May 29, 2012

MLB.com on May 29, 2012 released the following:

By John Schlegel / MLB.com

“Prosecutors poised to rest case vs. Clemens

WASHINGTON — As the seventh week of the Roger Clemens federal perjury trial begins, the prosecution is poised to rest its case against the former star pitcher.

With likely two witnesses remaining before the government’s case gives way to the defense’s case, which lead attorney Rusty Hardin has said will take seven or eight court days to present, the prosecution has called 21 witnesses over 19 days of complicated, detailed and sometimes tedious testimony to attempt to prove to jurors beyond a reasonable doubt that Clemens lied to Congress in 2008.

The defense will continue to endeavor to raise that doubt with its case, which will include repeat appearances from federal agents Jeff Novitzky and John Longmire, who each spent several hours on the stand as witnesses for the prosecution.

Before Hardin and fellow defense attorney Michael Attanasio, who proved to be a potent force in cross-examination of witnesses from Andy Pettitte to scientific experts, take their turn in presenting Clemens’ case, the prosecution will wrap up its presentation with what it hopes is an effective finale Tuesday.

Clemens is charged with three counts of making false statements, two counts of perjury and one count of obstruction of Congress based on his testimony during a Feb. 13, 2008, hearing before the House Committee on Oversight and Government Reform and a Feb. 5, 2008, deposition conducted by committee staff members. Clemens said at the hearing, “Let me be clear: I have never used steroids or HGH.”

Brian McNamee, who served as a strength and conditioning trainer to Clemens in one capacity or another for nearly a decade, said in his own deposition and at that same hearing and again in a week-long stay on the witness stand in the trial that he had injected Clemens with performance-enhancing drugs on numerous occasions, keeping items he says proves it in a beer can and a mailing box for nearly seven years.

Forensic scientist Alan Keel revealed Friday that Clemens’ DNA was found on a needle and two cotton balls that were part of the physical evidence McNamee kept in his house for several years before turning it over to the government. Keel also withstood rigorous cross-examination from Attanasio and numerous skeptical questions from jurors.

When court reconvenes Tuesday, the government intends to call Wall Street investment manager Anthony Corso and FBI forensic scientist Eric Pokorak. Prosecutors indicated at one point they might call one other as yet unnamed witness as well.

Corso is expected to testify about how McNamee told him in 2002 that Clemens had used HGH to help with recovery and told him in 2005 that he had saved needles from Clemens, combining with the testimony from former Major Leaguer David Segui to further rebut defense attacks that McNamee made up his story to appease federal investigators in 2007.

Pokorak likely will tie up the loose ends on the forensics introduced so far. Testimony has yet to provide the link between the items Keel testified had Clemens’ DNA to the steroids that other scientific experts testified were found on the items.

The government filed a pair of motions on Memorial Day. One moves to rebut the defense’s attacks on Keel and inform the jury that the defense also could have tested the evidence.

The other motion attempts to head off some of the character witnesses the defense intends to call, asking the court to “preclude or limit additional evidence of the defendant’s athletic work ethic and any opinion testimony by former coaches, trainers or teammates regarding the defendant not showing any signs of steroid or HGH use.”

The government argued that such testimony should open the door to testimony from other baseball players who “also adhered to strong athletic work ethics but nonetheless used steroids or HGH to perform better than their competitors.”

The pace of the trial was a significant issue earlier in the trial, which was projected to last 4-6 weeks — so much so that Judge Reggie Walton imposed time limits on the attorneys of 90 minutes for direct and cross. But Walton allowed both sides some leeway on that with Keel, given the importance of the evidence he discussed. Juror questions of Keel took about an hour as well.

Two jurors were excused for falling asleep on the job, and now a third juror may not be able to return. Juror No. 16, a Metro transit police officer, found out as Friday’s proceedings were coming to a close that her mother had passed away. Walton indicated it’s unlikely she’ll return to duty, which would leave the jury panel with 12 jurors and just one alternate remaining.”

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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 Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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.


Federal Judge Refuses to Throw Out Roger Clemens Perjury Case

September 2, 2011

Reuters on September 2, 2011 released the following:

“(Reuters) – A judge on Friday refused to throw out the perjury case against pitching star Roger Clemens over steroid use after a mistrial was declared when prosecutors presented evidence that had been barred.

Judge Reggie Walton agreed to start a second trial on April 17 over whether the former pitcher lied when he told Congress he had never taken steroids or performance-enhancing drugs. Prosecutors contend that he did and committed perjury and obstruction.

(Reporting by Jeremy Pelofsky, editing by Eric Beech)”

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 Sanctions 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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