Saturday, March 01, 2008

Clemens Investigation: Will It Lead To The Truth?

The Cool Justice Report
March 1, 2008

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

The FBI has begun investigating whether Roger Clemens has perjured himself in his recent Congressional testimony.

Clemens has flatly denied that Brian McNamee injected him with Human Growth Hormone, despite McNamee’s testimony before that body that he had done so. Further compounding Clemens’ credibility was the testimony of his friend and Yankee teammate, Andy Petite. Petite admitted to his own, albeit brief, use of the steroid to aid healing of an injury. More importantly, he indicated that Clemens had informed him that he had used steroids, thus adding a measure of corroboration to the McNamee allegation.

This column has been critical, not only of Clemens for his questionable decision to testify, but also of the approach of his counsel, Rusty Hardin. Hardin endorsed Clemens appearing and publicly testifying, and has embarked on a campaign to attempt to discredit Brian McNamee. Perhaps Hardin is correct. Perhaps McNamee is using the fame of Clemens as a bargaining chit to leverage the best possible deal to save himself. In the world of criminal cooperators the bigger the prize a cooperator’s testimony can deliver for the government, the greater the reward; that is the greater the reduction in the cooperator’s potential sentence. McNamee could not point to a bigger prize than Roger Clemens. Although the Mitchell report has determined that McNamee’s account is credible, McNamee has admitted that he has lied during the course of the investigation. Clemens lawsuit against McNamee, and now the potential of a criminal investigation and possible trial of Clemens could ultimately demonstrate where the real truth lies.

What are the possibilities for the Justice Department now charged with the responsibility to investigate. In a prior column this author reviewed the federal crime of giving a false statement to a federal law enforcement official. Title 18 United States Code, §1001(c) applies that prohibition to any matter within the jurisdiction of Congress or any subcommittee.

There is another potential crime to which Clemens has now been exposed: perjury. Title 18 United States Code §1621 states: “Whoever . . .having taken an oath before a competent tribunal, officer, or person . . . that he will testify, declare, depose or certify truly. . . 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. . . be fined under this chapter or imprisoned not more than five years or both.”

A second federal perjury statute, §1623, applies only to proceedings before a court or grand jury. That statute provides a safe harbor for the witness to purge himself of the crime if he is willing to go back before the panel before which the false declaration was made and admit to the falsity, before the panel concludes the proceedings where the perjurious comment was made. No such safe harbor exists if Clemens is indicted for perjury before Congress, either in the deposition he gave or his sworn testimony before the subcommittee.

Case law has further refined what is necessary to sustain a perjury conviction under §1621. First, the answer must be false: literally truthful answers that imply facts that are not true, as well as truthful answers to questions that are not asked, and failures to correct misleading impressions do not constitute perjury. In the second instance, answers to questions that are fundamentally ambiguous cannot, as a matter of law, be perjurious. Third, a perjury conviction under 18 U.S.C. §1621 cannot rest solely on the testimony of a single witness. In particular a prosecutor must be circumspect about bringing a perjury case based on the testimony of one witness if there is any question as to his credibility or truthfulness. As the Supreme Court has made clear, a perjury case ought not to rest entirely upon “an oath against an oath.”

Courts have also made it clear that the definition of perjury should be carefully limited. Perjury prosecutions can “discourage witnesses from appearing or testifying.” For that reason fundamentally ambiguous questions cannot sustain a perjury conviction. If there is more than one way to understand the meaning of a question and the witness answers truthfully as to his understanding of the meaning, that answer, even if contradicted by others, will not support a perjury conviction.

The third requirement, that there be more than just the contradiction between two witnesses, brings into sharp focus the testimony of Andy Petite, and former Yankee second baseman, Chuck Knoblauch, both of whom appear to corroborate some of McNamee’s claims. Before the Justice Department can consider presenting this matter to a grand jury it must be able to point to more than the direct contradiction between Clemens and his former trainer.

The taint on Clemens continues to grow, unfortunately adding an ugly footnote to an outstanding career. Clemens chose to put himself at risk when he elected to testify, knowing others would testify differently. The preservation of his legacy in the world of sports did not justify the risk he now faces.

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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