Prosecutors seeking to convict Roger Clemens of obstructing the United States Congress and making false statements must prove he was injected with steroids, knew what was in the shots and knowingly lied about it, lawyers said. And even then, according to published reports, prosecutors may not earn a conviction against the former pitcher.
Clemens, the seven-time winner of Major League Baseball's Cy Young Award, was indicted last week on charges that he lied to Congress in 2008 when he said Brian McNamee, his trainer, did not inject him with steroids and human growth hormone (HGH). McNamee told Congress and an inquiry by George Mitchell, a retired senator, that he did inject Clemens. To secure a conviction, prosecutors must convince jurors that McNamee told the truth and Clemens knew he was lying to Congress with statements like: "Let me be clear. I have never taken steroids or HGH."
Prosecutors must show such statements were meant to mislead, said Robert Kheel, an attorney who teaches sports law at Columbia University. But Clemens's greatest defence may lie in whether Congress should have been investigating the matter in the first place, according to a report in The New York Times. The Mitchell report was released at the behest of Bud Selig, the baseball commissioner, and not Congress. And that, attorney Reginald J Brown told the newspaper, gives Clemens's lawyers a strong argument to have the government's perjury case dismissed.
Perjury charges can only be brought in connection with investigations conducted as part of those Congressional responsibilities outlined in the Constitution, The Times reported. "The case against Clemens is not a slam dunk for the government," said Brown, a former special assistant to President George W Bush and an associate White House general counsel from 2003 to 2005. "Congress didn't do this investigation to determine whether they needed new drug laws," Brown told the The Times. "They didn't do it to determine whether federal agencies were exercising their proper oversight. They did this to figure out whether Clemens or his trainer were telling the truth, and that is arguably not a legislative function. It's not Congress's job to hold perjury trials."
Brown said the argument had been used successfully before to have perjury charges dismissed. Clemens, 48, faces one count of obstruction of Congress, three counts of making false statements and two counts of perjury. While he faces as much as 30 years in prison, federal sentencing guidelines recommend 21 months, prosecutors said. "I never took HGH or steroids," Clemens said on Twitter after the indictment. "And I did not lie to Congress. I look forward to challenging the government's accusations, and hope people will keep an open mind until trial. I appreciate all the support I have been getting. I am happy to finally have my day in court."
Anabolic steroids can be distributed in the US only with a doctor's prescription. Major League Baseball has banned their use without a prescription since 1971, and it banned HGH starting in 2005, according to the indictment. The indictment of Clemens, who won 354 games from 1984 to 2007, follows perjury charges against Barry Bonds, the former San Francisco Giants slugger who is accused of lying about his steroid use. Bonds, who retired in 2007 as the career home run leader, is scheduled for trial in March.
Clemens and Bonds were among dozens of players cited for steroids in a report released by Mitchell in December 2007. Mitchell interviewed McNamee, a strength coach for the Toronto Blue Jays and the New York Yankees. Clemens played for the Blue Jays in 1997 and 1998, and with the Yankees from 1999 to 2003. McNamee told Mitchell that he injected Clemens with steroids in 1998, 2000 and 2001, and with HGH in 2000.
Clemens met with staff members of the House Committee on Oversight and Government Reform on February 5, 2008, denying he took performance-enhancing drugs, according to the indictment. He echoed those denials in public testimony eight days later. Earl Ward, McNamee's attorney, said he gave the FBI the syringes and gauze pads that his client used with Clemens. He said McNamee kept the syringes in a box in his basement for several years and turned them over after Clemens attacked him.
Colleen Conry, a former federal prosecutor, said the case will hinge on the motive and credibility of witnesses against Clemens, and whether the government has corroborating evidence. "The jury would expect and demand, 'Where is the forensic evidence, where is the DNA? Where is the needle'?" said Conry, adding that while some perjury trials turn on ambiguous statements, Clemens was clear in his testimony.
"In this case, Clemens says he understood exactly what was being charged in the Mitchell report and he didn't use steroids or hormone growth hormone," she said. * The Washington Post, The New York Times