Sunday, January 20, 2008

Clemens' Conundrum


The Cool Justice Report
Jan. 20, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

Roger Clemens is struggling with his control, but this time it is not on the pitcher's mound. This time it's his life and potential legacy.

Without question Clemens will always be remembered as one of the most dominant pitchers in the history of baseball. The debate is already heated about how much, if at all, performance-enhancing drugs have contributed to that dominance. Will he also be remembered for allowing ego and arrogance to overcome judgment as he contemplates appearing under oath before Congress.

Senator George Mitchell, author of the now famous Mitchell report, testified last week that the reports provided to him by Clemen's trainer and friend, Brian McNamee, were deemed by him to be credible. His point: McNamee resisted giving up Clemens until he was told by federal investigators that he could only save himself if he gave completely truthful testimony. It was then that he dropped a dime on the Rocket.

Clemens has publicly challenged McNamee's account. He has secretly recorded a 17-minute conversation that he released to the press. He has also commenced a libel action against McNamee. Clemens supporters point to this public response as proof that Clemens has nothing to hide.

Receiving equal criticism is Clemens lead attorney, Rusty Hardin. Lawyers for McNamee have fired back at Hardin suggesting that his instigation of the taped phone call violated ethical proscriptions. Other legal pundits question the wisdom of commencing a libel suit at this juncture. In that lawsuit McNamee's attorneys can call Clemens to testify in a deposition, under oath.

Depositions are important tools for preparation of the trial of any civil lawsuit. It is an opportunity to commit the witness to a version of events. Any variance from that earlier testimony by the witness in a later proceeding allows the attorney to attack or impeach the witness' credibility by admitting the contradictory portions of the transcript of the prior deposition. Most civil depositions are recorded only by a court stenographer, but rules of practice everywhere permit video taping depositions. Guaranteed: This one will be video taped.

Should Clemens' deposition testimony be determined to be untruthful he is exposed to a perjury charge in the jurisdiction where that deposition will be taken.

But there is a more immediate threat: his impending Congressional testimony. Issuing public denials is expected any time such an accusation is publicized. Testifying that it is false is something else altogether -- witness Martha Stewart. The Domestic Diva served time because a jury convicted her of giving a false statement. Lying to or misleading the press is not a crime, if it was most politicians would be serving time. Lying to or deceiving Congress or federal investigators is a five-year felony. Future Hall of Famers have no special aura in this arena. Even the Vice President's chief of staff, Scooter Libby, learned, painfully, that stature does not forgive deception in an official investigation.

Title 18, United States Code, § 1001 prohibits giving false or misleading information to federal investigators:

"(a) 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-

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
. . .
"(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to . . .

(2) 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."

Clemens' resolve may already be weakening as his attorney is now resisting Clemens submitting to a deposition by congressional investigators in advance of his anticipated testimony.

Clemens has choices; choices most experienced criminal defense lawyers would recognize. An indictment for violating the false statement statute can be obtained with proof of probable cause that the utterances by Clemens are false or misleading. Case law in the federal system also recognizes that denials or claimed lack of recall, given under a situation where the Government believes one should have recall, is sufficient to indict.

Just like staring down a batter waiting for signs from his catcher, Clemens has choices. He can move forward with this folly and testify, exposing himself to federal prosecution (see Barry Bonds); or he can exercise his Fifth-Amendment right not to incriminate himself and refuse to testify.

There is one other choice, the one made by Andy Petite. If the Rocket did use performance enhancing drugs come clean with it; don't compound the offense by trying to brush back McNamee or Congress with a high and tight 99 mph fastball. There is a lot more at stake here than a place in Cooperstown.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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