9/11/2011

By Mikaela Cavalli, J.D. Candidate

On Friday September 2, 2011, Judge Reggie Walton, a judge on the Federal District Court for the District of Columbia, decided to give prosecutors a second chance to present their case against Roger Clemens for lying under oath about his use of performance-enhancing drugs. See Lester Munson, Why Roger Clemens Faces Another Trial, ESPN Commentary (Sept. 3, 2011). The first trial ended on July 14 in a mistrial when the prosecution presented evidence barred by the judge. See id.

Background of the Clemens Trial

The use of steroids in Major League Baseball has been a hot-button issue for some time now, and with the release of the “Mitchell Report” in December 2007, the hype surrounding this issue exploded. Clemens’ former personal trainer implicated the pitcher in the steroids scandal and colored many people’s perception of an illustrious career that included over 350 wins and 7 Cy Young awards. See Daniel Healey, Fall of the Rocket: Steroids in Baseball and the Case Against Roger Clemens, 19 Marq. Sports L. Rev. 289, 289 (2008). After being mentioned in the report, Clemens was summoned, alongside the trainer, Brian McNamee, to testify before House Committee on Oversight and Government Reform.

Clemens read from a prepared statement, praising his chance to set the record straight once and for all under oath. Clemens maintained that he had never used any type of performance enhancing drug and expressed his desire to see these drugs removed from all levels of sport.

McNamee, however, told a different story, claiming that he had injected Clemens (and others) with steroids and human growth hormones. Of the players McNamee claims to have injected, all but Clemens have acknowledged that they did receive the injections. One of these players and a close personal friend of Clemens, Andy Pettitte, signed an affidavit stating that Clemens had confessed the steroid use to him. This story was corroborated in another affidavit signed by Clemens’ wife. In addition to the affidavits, McNamee claimed to have kept physical evidence, including syringes and gauze that were used during the injections.

Clemens’ testimony, in the eyes of the Committee, featured several inconsistencies from what they believed to be the truth.  This prompted the Committee to recommend that the U.S. Department of Justice launch an investigation into whether Clemens lied under oath. After the investigation, a grand jury was convened in 2009.  On August 19, 2010, Clemens was indicted and charged with three counts of making false statements, two counts of perjury, and one count of obstruction of Congress. See Dave Sheinin & Spencer S. Hsu, Pitching legend Roger Clemens is indicted on charged of lying to a congressional committee, The Washington Post (Aug. 20, 2010).

The prosecution has built a solid case against Clemens, including four key pieces of evidence: his testimony in front of the House Committee on Oversight and Government Reform, the Pettitte affidavits, Clemens connection to a party thrown by Jose Canseco that purportedly began his interest in performance-enhancing drugs, and the syringes McNamee gave to federal investigators.

As far as the defense’s legal strategy goes, it is not entirely clear why Clemens chose to testify on Capitol Hill, knowing that doing so would require him either to lie or admit steroid use. Columbia Law Professor Robert Kheel argues that if there was any doubt that Clemens took steroids, he should not have testified, but that Clemens badly wanted to protect his image and decided that public perception of him was more important that his legal standing.

Clemens’ attorneys also have not represented their client in the best possible way. Rusty Hardin has antagonized the prosecution by making threatening statements in the press about lead investigator James Novitsky, and calling into question the veracity of the “Mitchell Report.” Additionally, Clemens and his attorneys conducted independent meetings with a number of witnesses, including McNamee and Clemens’ former housekeeper. They even recorded a conversation with McNamee and released it to the press, seemingly emboldening Clemens’ detractors.

Details of the Mistrial

On the eve of the trial in July, Judge Walton ruled that prosecutors could not make any mention of Laura Pettitte’s confirmation that her husband, Andy, had told her that Roger Clemens admitted to using human growth hormone. Problems arose when, on the second day of trial, the prosecution played a video of a Congressman discussing Laura Pettite’s sworn statement. At that point, the Clemens defense team accused the prosecution of deliberately violating the judge’s order.

Why the Judge Gave Prosecutors a Second Chance

Under American law, after a mistrial the only way a judge can dismiss a case and prohibit a second trial is to conclude that the prosecutors deliberately disobeyed his order.  However, Walton was convinced of the prosecution’s innocence in displaying the video with barred content. First and foremost, Walton knew the prosecutors very well. He had worked with them many times in the past and had always known them to be highly professional and not the kind of lawyers who would deliberately sabotage a case under any circumstances. On top of that, the trial had barely begun. It was too early to tell which side was ahead, and if anything, the prosecution’s case was going better than expected.  There was no discernible reason for the prosecutions to deliberately disrupt the proceedings.

Moving Forward

The charges against Clemens are serious, and if convicted he will likely be sentenced to a federal penitentiary. Baseball fans have proven to be forgiving of players who have admitted to steroid use: Jason Giambi settled in New York post-steroids, and Andy Pettitte was given a warm welcome by Yankees fans in his first 2008 start. However, Roger Clemens maintains his innocence and only time will tell whether he is telling the truth.