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The last we heard from the Roger Clemens trial was that a mistrial had been declared because the prosecution presented evidence that was previously ruled inadmissible. Today, the judge in the case ruled in favor of a retrial instead of throwing the case out. From Jim Baumbach of Newsday:
Judge rules in favor of a retrial for Clemens. Sets trial date of April 17. Clemens, however, can appeal this decision.
The difference between getting a retrial or having the case thrown out was one of intent. Did the prosecution deliberately enter the evidence, knowing that would lead to a mistrial, which would be a sneaky way the prosecution to start the trial over? Or was the entry of the evidence an accident, like sitting on your cell phone weird and butt-dialing an ex-girlfriend at three in the morning? The Judge Reggie Walton ruled it was the latter, probably in those exact words.
Clemens can appeal to the District of Columbia Court of Appeals, which he will almost certainly do. This means that the April 17th date for a retrial is hardly set in stone, as the appeals process might not even be finished by then.
Tom Schoenberg and Ann Woolner at Bloomberg have spoken to lawyers who say that after the mistrial in his perjury case, Roger Clemens will probably have to face a jury yet again.
"A procedural goof-up shouldn’t preclude a retrial, unless the judge believes it involves intentional, egregious misconduct," [Stanford law professor Robert] Weisberg said, citing a Supreme Court ruling.
We'll see whether the judge finds the prosecution's behavior to be "intentional" and "egregious." Judge Reggie Walton had already ruled that the prosecution could not refer to former Clemens teammate Andy Pettitte's wife, Laura, except to refute arguments by Clemens' side. But the prosecution played a video clip of Clemens testifying to a congressional committee in 2008 that included a question from Rep. Elijah Cummings that mentioned Laura Pettitte.
Does this constitute "intentional, egregious misdonduct"? Well, we'll see. Walton scolded the prosecution for its use of the video, saying that a "first-year law student" would have known not to include it. If Walton determines the prosecution acted egregiously, he could say invoke double jeopardy and say that the prosecution can't retry Clemens.
The trial was just getting started, however, which would suggest that, although Walton might have been annoyed with the prosecution, he's likely to allow the government to put Clemens on trial yet again. The prosecution's mistake was a silly one, but it appears unlikely, in itself, to prevent them from getting their man.
Ed. note: This post was written by Charlie Wilmoth.
The Roger Clemens trial came to an abrupt end Thursday morning as Judge Reggie Walton declared a mistrial following the government's introduction of inadmissible evidence. The government showed video that included Rep. Elijah Cummings reading from Laura Pettitte's affidavit regarding comments Clemens made to her husband, Andy Pettitte, which Andy in turn told Laura. This double hearsay was ruled inadmissible prior to the trial.
Judge Walton has set a hearing for September 2 to determine whether the government will be allowed to re-try the case. The defense has 10 days to file a motion to prevent such a re-trial and it's safe to say Rusty Hardin will be getting that motion in as soon as possible.
Now that the trial has been terminated, the primary question that arises is whether double jeopardy would apply. The Fifth Amendment protects citizens from being prosecuted twice for the same crime. In a criminal case jeopardy generally attaches once the jury has been empanelled. In the Clemens case, the jury was empanelled and the government had already called multiple witnesses when they introduced the inadmissible evidence.
While jeopardy attached, Judge Walton's decision to declare a mistrial will likely allow the government to re-try the case. In US vs. Perez (22 U.S. 579), the U.S. Supreme Court held that a second trial does not violate a defendant's constitutional rights as long as the trial judge has declared a mistrial in the first proceeding based on "manifest necessity." The Court did not have a specific formula for determining this necessity other than to say the trial judge needed to exercise sound discretion.
In plain terms, the government will likely be allowed to re-try the case as the mistake could be viewed as inadvertent. We'll know more after the September 2 hearing, but I'd predict we can expect this circus to start back up later in the fall.
The Roger Clemens trial has come to an abrupt and unexpected end, with Judge Reggie Walton declaring a mistrial because the government introduced evidence previously ruled inadmissible.
The mistrial surrounds video shown during the testimony of Congressional staffer Phil Barnett. As Barnett was testifying as to the legitimacy of the 2008 hearing, the government was showing video from the hearing. At one point they showed video of Rep. Elijah Cummings questioning Clemens, during which Cummings read from the affidavit of Laura Pettitte, Andy Pettitte's wife.
In the affidavit, Laura mentioned that Andy had told her Clemens told him he used HGH. During pretrial hearings, Judge Walton had ruled this inadmissible because it was double hearsay. The first level of hearsay was Clemens telling Pettiitte and the second level of hearsay was Pettitte telling his wife. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is inadmissible unless one of a number of exceptions apply. In this case, no such exception was allowed and it was ruled inadmissible.
By introducing the inadmissible content, the government ran afoul of Judge Walton's ruling. Defense attorney Rusty Hardin moved for a mistrial on the grounds that the bell could not be "un-rung" even if Judge Walton issued an instruction to the jury to disregard. Judge Walton agreed and viewed this as a direct violation of his pretrial ruling. He officially declared a mistrial, although he said the government could re-introduce the case to a new jury. I have to believe the government will seek new charges, but they haven't announced that yet.
After years of discussion and analysis, the trial of Roger Clemens finally began in earnest on Wednesday as we had opening statements and the first few witnesses take the stand.
The opening statements were arguably the most interesting aspect of the morning. Both sides focused in on the expected testimony and related evidence from Brian McNamee. The government pointed to evidence of Clemens' DNA on needles and cotton balls while the defense set out their plan to paint Brian McNamee as an habitual liar amidst a case of the government going out of its way to take down Roger Clemens.
After completing opening statements, the government began presenting its case to the jury. They opened by calling Charles Johnson, who held the role of parliamentarian for the House of Representatives from 1994 to 2004. Johnson was brought on to help establish the legitimacy of the proceedings. He broke down the authority and customs of Congress and why such a hearing would be pertinent.
One of the major questions in regards to the hearings is the issue of subsequent legislation that may come from the hearings. Clemens defense attorney Rusty Hardin attempted to establish that the hearing was simply Congress butting into a private citizen's alleged use of a controlled substance. With no plan to even attempt to pass legislation, Hardin believes it was an improper use of power.
Following Johnson's testimony, the government began their direct examination of congressional staffer Phil Barnett. While Barnett did not finish the direct examination, he was able to testify as to the reasons behind the hearing and why it was necessary. Barnett testified on public health concerns following a CDC report on rising steroid use, adding that the Committee had actually considered legislation after the 2005 steroids hearing. He stated that Clemens was invited to testify before the Committee in the hearing and via deposition because he challenged the accuracy of the Mitchell Report.
The trial will resume Thursday morning with continued direct examination of Barnett.
Opening statements got underway on Wednesday in the Roger Clemens trial and the defense laid out their plans to portray Brian McNamee as a habitual liar who betrayed what Clemens viewed as a solid friendship. The opening statement provides an opportunity for an attorney to lay out his case to the jury, piece-by-piece. The opening statement is not evidence, but rather a road-map of what lies ahead.
While the opening statement is not evidence, attorneys can use it to generate certain buzz words in the minds of jurors. When subsequent evidence appears and those buzzwords pop up, they'll connect it back to what they heard in the opening statement. If an attorney plans to provide certain pieces of evidence and fails to do so, a juror can often think back to what they remember from the opening statement and question the decision not to include the evidence.
While the defense will also go after the legitimacy of the Congressional hearings, they will be looking primarily to paint Brian McNamee as a liar and more or less a degenerate. He pointed to evidence McNamee lied in an un-related previous police investigation. He also referred to him repeatedly as a drug dealer who government officials were willing to give a free pass in exchange for taking down Clemens. This is somewhat similar to Bonds' defense as investigator Jeff Novitzky has often been described by defense attorneys as overzealous in his investigation of PED usage.
During the prosecution's opening statement, AUSA Steven Durham pointed to physical evidence of Clemens' DNA appearing on needles and cotton balls. The defense contends that evidence could very well have been manufactured. Hardin's basic point throughout the opening statement was that this goes against the work ethic on which Clemens has built his career. He pointed to Clemens success before meeting McNamee and that since his high school days he has built himself up entirely on that work ethic.
The defense will base much of their case on trying to paint McNamee as untrustworthy. It will be interesting to see how they counter some of the independent evidence the government will attempt to provide. For example, we still don't know whether the other players who worked with McNamee will be allowed to testify about their own PED usage.
The judge initially was inclined to allow this testimony, but it will depend in part on whether the defense elects to claim McNamee was blackmailing Clemens for a job. That is pertinent because if other McNamee-trained athletes were using PEDs, McNamee could have simply blackmailed them if Clemens wasn't actually using like the defense claims. This could be strong independent evidence that would allow the jury to infer Clemens own involvement.
A day after jury selection concluded, the Roger Clemens trial got into full swing on Wednesday with opening statements from each side. The final Clemens jury consists of ten women and two men, with nine African Americans and three whites. For comparison's sake, the Barry Bonds trial consisted of eight women and four men, only two of which were African American.
Clemens is on trial for one count of obstruction of Congress, three counts of providing a false statement, and two counts of perjury. The opening statements provide an opportunity for each side to lay out its case for the jury. Opening statements do not constitute evidence to be considered during jury deliberations, but rather it is the road map for the case. Attorneys will use phrases like, "The evidence will show..." and "Witness X will testify that..." They will use these phrases because attorneys cannot make arguments during the opening statement, they can only lay out facts. Thus the difference between the opening statements and closing arguments.
The government opened with a fairly straightforward, no-nonsense approach in laying out the facts. They initially pointed to the role of Congress in protecting the public health in an attempt to establish the legitimacy of the Congressional committee and the subsequent hearings. Part of the defense's strategy is to convince the jurors the Congressional hearings were not a legitimate, which would call into question whether Clemens actually could have obstructed Congress.
The government then went right to the heart of their case in describing the long-standing relationship between Clemens and Brian McNamee. Assistant US Attorney Steven Durham told the jurors about the PEDs McNamee allegedly provided to Clemens. Durham went through the pieces of evidence that would prove this occurred, culminating in his introduction of what could be the smoking gun in this case. Durham provided a photograph of needles and cotton balls, which he claims contain Clemens DNA. While Clemens claims McNamee injected him with B-12 and lidocaine, the government contended the syringes contained no such substances.
Much of this case revolves around the motives of Brian McNamee. The government portrayed him as a guy just trying to protect himself by preserving the DNA evidence. He apparently did not trust Clemens entirely and wanted to cover his back in case Clemens ever threw him under the bus. The government will provide upwards of 45 witness, but their case will really hinge on whether the jury is willing to believe McNamee. The defense will paint him in very broad strokes as a liar who manufactured this evidence. The final verdict could very well come down to this one man.
Jury selection is expected to conclude on Tuesday in the Roger Clemens trial, but the morning saw a preliminary hearing as to the jury instructions. Once a jury is selected, the empaneled jurors will receive preliminary jury instructions before opening statements and then additional instructions either right before or right after closing arguments.
The Tuesday morning argument dealt with the preliminary instructions expected discussion of the legitimacy of the Congressional hearings. The defense is arguing the hearings go beyond Congress's legislative powers and turned into nothing more than a he said-he said contest between Roger Clemens and Brian McNamee. Congress has held multiple hearings concerning PED usage in baseball and other sports over the last ten years and every time the hearings come up there are complaints about Congress wasting money on an issue that is not of their concern.
In this particular instance, there was a portion of the hearing devoted to whether Roger Clemens was at a pool party at Jose Canseco's house. Clemens denied attending the party and the defense contends this minor dispute within the hearing suggested a lack of legitimacy. They believe the jurors should not only be looking at whether Clemens lied, made false statements and/or obstructed Congress, but also whether the hearing itself was legitimate. If the jury decided the hearings were not even legitimate in the first place, that would conceivably throw out the obstruction of Congress charge even if it is proven that Clemens purposefully lied to Congress.
Jury selection in the Roger Clemens trial took a big step towards reaching its conclusion Monday, as the attorneys came to an agreement on a pool of 35 prospective jurors. The court was hoping to get 36 jurors they could cut down to 12 in the knockout round.
However, after reaching the minimum available by the close of business on Monday, the judge would have had to screen 50 more jurors with 82 questions just to find one more for the pool. Judge Walton felt sufficiently comfortable with 35 and will use that number to determine the final twelve person jury and four alternates.
Walton did say that given the number of available strikes the final group could come in short on alternates. However, Walton was comfortable with that rather than screening another 50 individuals. The resolution of the 35-person pool means we should see the final jury empaneled Tuesday. If the pace continues at what we saw today, it is possible the court will issue jury instructions Tuesday afternoon and begin opening statements Wednesday morning.
The attorneys will report back to the court at 11 am Tuesday.
Based on the tweets coming from the court room, there could be a considerable number of jurors who have either never heard of Roger Clemens, or only know his name as one they've heard before but can't place. While baseball is America's pastime, this jury selection process shows that there is seemingly a large demographic that doesn't care much about baseball.
Throw in numerous attorney and juror pot shots about the Nationals, and Bud Selig can't be pleased with that development.
The Roger Clemens trial enters its second week halfway through the first round of jury selection. The court must come up with 36 possible jurors it can then whittle down to the 12 person panel and four alternates. After two days of jury selection last week, the attorneys advanced 18 individuals to the knockout stage. At the current pace, the first round should be completed at some point Tuesday afternoon.
At that point the two sides can work to empanel the jury by the end of the day on Wednesday. Of course, Judge Walton has been less than pleased with the slow pace thus far so it is entirely possible the lawyers might speed things up on Monday. The two sides have to advance 18 more people and if they dismiss three more before then, another 50 individuals will have go through the preliminary 82 questions met by the first 50.
If I had to make a prediction, it would be that jury selection is complete by Wednesday afternoon, which would get us to opening statements Thursday morning. If the opening statements are anything like they were in the Barry Bonds trial, we could have our first witness called Thursday afternoon. If the statements carry into the afternoon, the first witnesses would be held over for Monday July 18 as the court is in recess on Fridays.
The Roger Clemens perjury trial is in recess until Monday morning after two full days of jury selection. The court has selected 18 prospective jurors for the 36-person pool that will eventually be narrowed down to 12 starting Tuesday or Wednesday. At this point the attorneys are presenting a variety of oral questions to prospective jurors to decide whether they should make it to the knockout round.
As the attorneys works to narrow down the group, they will likely have to bring in more prospective jurors. The court indicated Thursday afternoon that if three more prospective jurors were dismissed before 18 more were selected, the court would need to screen 50 more jurors with the original 82-page questionnaire.
Given the high profile nature of this case, the questionnaire is incredibly long and detailed. Fortunately for us, the questionnaire is available for our viewing pleasure. When the private citizens reported for jury duty this week, they were screen with this 82-page questionnaire. Answers to some of the questions would result in automatic dismissal from the jury for cause. The attorneys are also able to use the answers to formulate their own questions for the jurors. If they see a certain answer that would indicate a prospective juror might be friendly to their cause, they are likely to address it accordingly during the voir dire process.
While a lot of the questions are fairly generic, there are numerous questions related to knowledge of an feelings about Congress, Major League Baseball, performance-enhancing drugs, and even science issues related to DNA and chemical analysis. You can read through all 82 questions below.
The perjury and obstruction of Congress trial of Roger Clemens ended its first shortened week after day two of jury selection. The pool of potential jurors will be whittled down to 36, at which point the "knockout round" will begin and the final twelve-person jury, plus alternates, will be determined.
The trial adjourned for the weekend, which means jury selection will pick back up Monday morning. In the first two days, 18 prospective jurors have been approved for the 36-person pool. According to Judge Reggie B. Walton, the hope is to have the 36 people selected by Tuesday afternoon, at which point they'll work to select the 12-person jury. The process could potentially slow even further, as the court is running low on its current pool. Apparently, if three more prospective jurors are dismissed before the 36 are selected, the court will have to screen 50 more potential jurors with the 82-page questionnaire.
While the Clemens trial is looking at upwards of five or six days to empanel a jury, the Barry Bonds trial took a single day to complete the task. One significant issue for this case is the geographic region used to prospective jurors. Washington, DC has a fairly low number of registered voters, and trial experts view it as a tricky area for selecting a jury due to the vast differences in demographics. Analyzing the jurors to create an optimal pool is thus likely to require greater time and analysis.
The Roger Clemens trial continued its second day of jury selection on Thursday and one of the highlights of the day involved Judge Reggie Walton scolding the attorneys for the length of some of their questions. Jury selection was originally supposed to be finished by the end of the week but now is expected to go until at least Tuesday, if not longer.
This is not the first time Judge Walton has come down hard on a participant in this trial. On Wednesday, he chewed out a Congressional attorney for refusing to turn over audio of Clemens testimony before the Congressional Committee. Walton has made it clear that he will not take any sort of nonsense from the various parties.
While the attorneys will be the ones presenting the case, Judge Walton will play an important role in this trial. As presiding judge he rules on what evidence is admissible and inadmissible. He can strike testimony from the record and admonish witnesses. A look back at high profile cases reveals the power and issue of certain judges. Following the OJ Simpson murder trial, Judge Lance Ito was roundly mocked for his inability to maintain control of the trial. Prior to this year's Barry Bonds trial, Judge Susan Illston struck down numerous pieces of evidence due to their hearsay nature, likely costing the government additional convictions.
Judge Walton has been on the DC District Court since 2001 and has a history with high profile cases. Most notably, he presided over the trial of former vice presidential aide Scooter Libby. Walton sentenced Libby to 30 months in federal prison and a $250,000 fine after he was convicted of perjury, obstruction of justice, and false statements. He is also hearing several cases related to the Guantanamo Bay detainees.
The sentencing history of judges can be noteworthy even though every case is expected to stand on its own merits. As Bonds waits for Judge Illston to hear motions on dismissing the one guilty verdict, he can feel some sense of optimism about a potential sentence if his motion is denied. Illston has presided over the BALCO cases from the beginning and the guilty athletes have generally received only house arrest from her.
This case goes further than the BALCO case given the inclusion of obstructing Congress. Each of the six counts carries a maximum of five years, but even if convicted on all six counts, Clemens would like receive 15-21 months in prison. If Clemens is convicted on only some of the counts, it will be interesting to see how Judge Walton sentences him given his mix of no past criminal record, but still outright defiance in denying everything.
Day one of the Roger Clemens trial came to a close as the court began the process of jury selection. The process is expected to last two to three days with opening statements to follow. Jury selection involves presenting the pool of prospective jurors with a variety of questions drawn up by the prosecution and defense. Through the use of these jury questionnaires, each side has the opportunity to find a jury that will be most friendly to their case.
Prior to the jury selection, the two sides argued a variety of motions in front of the judge that raised some possible issues for when trial testimony begins. The two biggest issues related to the transcript of Clemens' testimony and the possibility of former athletes testifying as to their dealings with Clemens' trainer Brian McNamee.
Congress referred Clemens' name to the Justice Department for prosecution, and when they submitted his name they submitted a transcript of his testimony as part of their evidence. Clemens' attorney Rusty Hardin demanded Congress turn over audio of the hearing because he believes the tone and inflection reflected in the audio would impact the case.
The government attorneys told the judge they asked for the tape but the House refused. According to the House attorney present at the trial, it would take a resolution by Congress to get the audio released. In a bit of a tag team, the judge reprimanded the House attorney for hiding behind a technicality but also stated that he would not hold up the case waiting for a resolution. It will no doubt be an issue on appeal if Clemens is found guilty.
The other significant issue concerned the expected testimony of a variety of retired baseball players. Heading into the trial, the testimony was expected to be fairly limited in that the players could not testify about drugs they had admitting receiving from McNamee. Under the Federal Rules of Evidence, all relevant evidence is admissible except as otherwise provided in the Federal Rules. McNamee providing PEDs to other players is relevant to his actions. From those actions one could infer that Clemens also received PEDs, given his relationship to McNamee and these other players.
However, under Rule 403, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues." Prior to Wednesday, Judge Reggie Walton indicated he was probably not going to allow the testimony of the retired players receiving PEDs from McNamee because a jury might infer Clemens' guilt based on this evidence.
Wednesday, Judge Walton changed his mind due to one of the very defenses Clemens will raise. According to Clemens' attorney, the defense plans to attack McNamee by saying he manufactured evidence 10 years ago to blackmail Clemens into hiring him. Judge Walton responded by asking why he wouldn't also blackmail the other players to whom he gave drugs. If the defense is correct in that Clemens did not use the substances and did not receive the substances, would it not be easier for McNamee to blackmail a person who had actually received the substances?
Based on that issue, Judge Walton decided to allow the players to testify about the PEDs they received from McNamee, so long as that defense will be used by the defense. Given the expected physical evidence of syringes, gauzes and Clemens' DNA on both, this defense likely remains on the table. If this is the case, the defense will likely look to show vagueries in the players' testimony or that it is simply an unrelated matter that should not lead to an inference of guilt.
The Roger Clemens perjury trial began its first day of jury selection on Wednesday in a process that will likely carry through the end of the week. The jurors are facing over numerous questions related to baseball, performance enhancing drugs, and sports in general as the attorneys look for the most favorable 12-person pool.
As they have waded through the questions, an interesting one arose in relation to steroids and baseball. Question number 37 of the day asked whether the jurors had heard of Barry Bonds' perjury trial earlier this year. Bonds testified before a grand jury in regards to his involvement with BALCO and his testimony resulted in the subsequent federal trial in San Francisco this year.
One of the reasons for such a jury question is the need to keep the jurors from confusing the issues of Bonds' trial with the issues of Clemens' trial. There are vast distinctions between the conduct of Clemens and Bonds that could very well influence the outcome of this trial.
When Bonds went before the BALCO grand jury, it came as a result of a federal subpeona that required him to testify. He was granted immunity so long as he told the jury the truth. During his testimony, Bonds actual acknowledged using steroids but he claimed it was inadvertent and his trainer Greg Anderson had given them to him without his knowledge. Bonds claimed he was under the impression they were flaxseed oil and arthritic balm. In looking through the various counts against Bonds, the only time he gave a particularly emphatic no was when he was asked whether anybody but Bonds' personal physician and Giants team doctors had injected him.
In contrast, Roger Clemens has maintained with clear defiance that he never used steroids or HGH, that he never possessed either substance, and that he never even discussed steroids. He volunteered to go before Congress without a subpeona and without any sort of immunity for crimes he may have committed. He testified in a deposition and then once again before the Committee in a hearing about the Mitchell Report.
The only similarity between Bonds and Clemens is that both are accused of lying to the federal government. While Bonds was found guilty only of a minor obstruction of justice charge that might get thrown out, Clemens finds himself facing a tougher task. Bonds was fairly vague in answering the grand jury questions and rarely gave hard yes or no answers to questions. In doing so, Bonds made the government's case that much more difficult. It's harder to prove something beyond a reasonable doubt when the jury isn't quite sure how clear the defendant was and what exactly is going on. Throw in nothing more than circumstantial evidence and it is not surprising the government failed to meet their burden.
On the other hand, by vehemently denying use or knowledge of steroids and HGH, Clemens has put himself in a position where circumstantial evidence could prove sufficient. Furthermore, while Bonds' trainer Greg Anderson refused to testify, the government's case against Clemens is heavily-based on the testimony of trainer Brian McNamee. The defense has made it quite clear that they will be looking to discredit McNamee.
While there will be plenty of testimony from more well-known names like Andy Pettitte and famed BALCO investigator Jeff Novitzky, McNamee's testimony will likely make or break the government's case. There are reports of syringes kept by McNamee that could provide a smoking gun that was absent in the Barry Bonds perjury trial. If that smoking gun exists, Clemens is in for a world of trouble.
On Wednesday, jury selection begins in the case of USA vs. William Roger Clemens. On August 19, 2010 a grand jury handed down a six-count indictment against Roger Clemens that included one count of obstruction of Congress, three counts of making a false statement, and two counts of perjury. The charges relate to his deposition testimony on February 5, 2008 and his testimony before the Committee on February 13, 2008. If found guilty on all six counts he faces a maximum of thirty years in prison, but would likely get less than 21 months per federal sentencing guidelines.
The most all-inclusive charge is Obstruction of Congress which covers his numerous denials, his comments about Andy Pettitte "misremembering" Clemens' prior comments, and a variety of other comments Clemens made in regards to his alleged knowledge of PEDs and his alleged discussion of PEDs. Obstruction of Congress is a violation of Title 18 of the U.S. Code, Sections 1505.
Under Section 1505:
Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so ..... Shall be fined under this title, imprisoned not more than 5 years[.]
Clemens also faces three counts of giving false statements based on his denial of using HGH and steroids, and saying that Brian McNamee injected him with B-12 and not a PED. This violates Title 18 of the US Code, Sections 1001(a)(2) and (c)(2). Subsection (a)(2) states:
Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully .... makes any materially false, fictitious, or fraudulent statement or representation ... shall be fined under this title, imprisoned not more than 5 years.
Subsection (c)(2) applies subsection (a) to Congress only when it involves "any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate."
The final two counts are for perjury and relate to Clemens' denying he received steroids and HGH from McNamee. This violates Title 18, Section 1621(1), which states:
Whoever having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true ... is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years.
Of course, given how vehemently Clemens has denied everything related to the case, one has to wonder how badly Clemens believes what he said is the actual truth.
In 2008, Roger Clemens told a House of Representatives committee that he had never used performance enhancing drugs. Now, evidence suggest that he may have lied back in 2008, so he gets to go through the fun that is a federal perjury trial. Even more fun will be the job that United States District Judge Reggie Walton has, which is to find 12 jurors and four alternates who don't already have a strong opinion on a case involving a famous person.
The process of whittling down a pool of 125 Washington D.C. residents to 12 jurors and four alternates begins Wednesday, as Judge Walton will ask potential jurors a series of 67 questions about their knowledge of and opinions on the case. The first 50 prospective jurors will be interviewed on Wednesday, and Judge Walton wants to finish selecting the jury by early next week.
The charges Clemens faces are one count of obstruction of Congress, three counts of false statements and two counts of perjury.
Three and a half months after the perjury trial of Barry Bonds began in San Francisco, another legend of the game goes under the microscope as the perjury trial of Roger Clemens begins in Washington, DC. Clemens faces six criminal counts that include one count of obstruction of Congress, three counts of false statements and two counts of perjury.
This whole process began in March 2005 when Congress held a hearing entitled "Restoring Faith in America's Pastime: Evaluating Major League Baseball's Efforts To Eradicate Steroid Use." (PDF) This hearing was meant to investigate the use of performance enhancing drugs (PEDs) in Major League Baseball. The resulting outcry led to Major League Baseball engaging former Ambassador, Senator, and Judge George Mitchell to develop a comprehensive investigation of PED use in MLB.
Mitchell's investigation resulted in a 409-page report (pdf) that implicated Roger Clemens in the use of anabolic steroids and Human Growth Hormone (HGH) multiple times in 1998, 2000, and 2001. In response to this report, Clemens issued multiple public statements explicitly denying his use of steroids and HGH. He also offered to testify accordingly before the Congressional committee.
On January 15, 2008, Congress held a hearing in which George Mitchell testified as to the findings of his report. A few days later, Congress officially invited Clemens to testify concerning the accuracy of the Mitchell Report. They did not issue Clemens a subpoena and he was under no legal obligation to testify. Additionally, he retained his Fifth Amendment right to refuse to answer any questions that might tend to incriminate him.
On approximately February 5, 2008 Clemens provided a sworn deposition to the Committee's staff. He was placed under oath and due to the nature of the deposition, false statements held the same criminal weight as they would in the hearing itself. During the deposition, Clemens repeatedly stated that he had not used steroids or human growth hormone. Additionally, he testified that he had never possessed or seen HGH or anabolic steroids and he had never discussed the subject of HGH or anabolic steroids with anyone. A week later, Clemens testified before the full committee in a second Mitchell Report hearing. Once again, Clemens emphatically stated that he never took steroids or HGH.
Here is a look at Clemens' opening statement from the February 13 Congressional hearing. The first 4:30 is mostly fluff, but the final ten seconds is the first point in which Clemens says without equivocation, "Let me be clear. I have never taken steroids or HGH." You can view the entire hearing at C-Span's archives.
This truly is Roger Clemens' day of reckoning. He has vehemently denied using PEDs and he enthusiastically went before Congress to say so. Three years later, Clemens finally gets his day in court. If found guilty on all counts, Clemens faces a maximum sentence of 30 years in prison and a $1.5 million fine. As a person with no criminal record, he would likely receive a considerably reduced sentence if found guilty. Previous perjury guilty verdicts have resulted in as little as house arrest. Of course, even if he's found not guilty, he has long since been judged in the court of public opinion. The good news for Clemens is the public can't send him to federal prison.
Over the coming weeks, we'll be here every day to provide updates and analysis on the testimony and evidence presented to the jury. The trial is expected to last approximately four to six weeks. Jury selection begins Wednesday July 6 and will likely carry through the first abbreviated week of the trial. Once jury selection is complete, opening statements will begin.
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