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Kallas: First Pitch Fired In Trial Of Roger Clemens

(credit: Mark Wilson/Getty Images)

(credit: Mark Wilson/Getty Images)

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By Steve Kallas
» More Columns

On Monday, April 16, 2012, in the federal district courtroom of Judge Reggie Walton in Washington, D.C., it’s “Take Two” in the criminal trial of pitching legend Roger Clemens.  As you know, Clemens’s first trial was declared a mistrial by Judge Walton back on July 14, 2011, when the judge ruled that prosecutors had made a big mistake by showing the jury evidence that had been previously ruled inadmissible by the judge.

This time around, the government has added prosecutors, presumably to avoid any more embarrassing mistakes.  In addition, the prosecution does have a little leg up because they were able to get a sense, at the brief first trial, of what the defense is actually going to be on behalf of Roger Clemens.

WHAT ARE THE CHARGES?

Clemens is charged with one count of Obstruction of Congress, three counts of False Statements and two counts of Perjury arising out of his testimony before The House Committee on Oversight and Government Reform in February 2008.

As you know, since being accused of using performance-enhancing drugs, Roger Clemens has vehemently denied any such use and decided (stupidly, it says here) to testify before Congress.  It says here that, without appearing before the Committee (again, Clemens appeared voluntarily), Clemens would be in no trouble with the law.

Think about that as this trial goes forward.

WHAT IS THE MAIN EVIDENCE AGAINST CLEMENS?

This may be a bit simplistic, but the three main pieces of evidence will be the testimony of Brian McNamee, the former trainer of Roger Clemens; the alleged DNA evidence on some syringes kept by McNamee in his basement (seriously) for a number of years; and the testimony of Andy Pettitte, who may or may not have had a conversation with Clemens (now some 12 or 13 years ago) in which Roger Clemens told Andy Pettitte that he (Clemens) had used HGH.

HOW WILL THE DEFENSE CONTEST THIS EVIDENCE?

Well, defense lawyer Rusty Hardin’s team will attack McNamee’s credibility and will certainly have some things to work with given McNamee’s past.  It’s amazing to this writer that some alleged DNA evidence on a syringe that was kept in Brian McNamee’s basement for years will be allowed into evidence given the chain of custody issues and the unclear nature of how such evidence can exist after years (especially given the Clemens defense that he was injected with B 12 and lidocaine as opposed to PEDs).

The Andy Pettitte testimony could be the most interesting part of the trial (is there any chance that the Yankees pushed back the return of Pettitte so he wouldn’t have to leave the team to testify?  Just asking, but what a circus that would have been).

As this writer has previously discussed in great detail (see Kallas Remarks, 7/5/11), very few are unaware that, prior to signing a clear, two-page affidavit (stating succinctly that Clemens told Pettitte he had used HGH) that was presented to the public back during the Congressional hearings, Pettitte gave a 105-page deposition to the Committee four days earlier.

There are a number of things in that deposition (again, discussed in great detail in the 7/5/11 column) that actually could help Roger Clemens beat the rap in this indictment.  Pettitte was not as clear, was not as sure, as to what was actually said and discussed during that conversation he had with Clemens now many years ago.

It says here that a skilled defense cross-examiner (and you know Roger Clemens will have one of those) might very well create some reasonable doubt with Pettitte on the stand.  According to published reports, other than McNamee, Pettitte is the only person who can confirm anything with respect to Roger Clemens’s actual use of HGH.

It says here that Andy Pettitte, who can’t possibly want to put his former best friend (and idol) behind bars, may very well help out the defense if he’s not 100% clear on the contents of a conversation that took place either 12 or 13 years ago (according to Pettitte).  And don’t forget that Andy Pettitte has his own HGH/credibility issues, admitting piecemeal that he had used HGH first once and, later, twice (you’ll recall that Pettitte did not want to get his father involved when he didn’t initially tell “the whole truth” about his own second usage of HGH).

IF CONVICTED, WILL ROGER CLEMENS GO TO JAIL?

It says here that he will, not because of some legal theory, but because of what Judge Walton (surprisingly) said at the first trial.  Forget the “estimates” of up to 30 years.  While technically true (5 years per felony count times six counts), that would never happen to Roger Clemens.  According to the federal sentencing guidelines, Clemens “range,” if convicted, would be 15-21 months.

The reason Roger Clemens will go to jail if convicted is because Judge Walton, when declaring a mistrial in the first trial, stated that he was granting a mistrial “[b]ecause if this man got convicted, from my perspective, KNOWING HOW I SENTENCE, HE GOES TO JAIL.” (emphasis added).

You don’t have to be a brains surgeon (or a lawyer) to know that Roger Clemens will do some time if he is convicted after trial.

Jury selection is scheduled to begin today, April 16, 2012.