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February 13, 2008

Should Roger Clemens now be indicted for perjury?

Here is a very simple question for any and all federal prosecutors or would-be federal prosecutors: Based on his performance under oath before the House today, should Roger Clemens be indicted for perjury.  According to this MLB.com article, at least one former federal prosecutor is talking up perjury charges for the seven-time Cy Young winner:

Roger Clemens was unconvincing in his testimony before Congress and may have opened himself up to federal perjury charges, a legal expert told MLB.com on Wednesday.  Katherine Darmer, a former assistant U.S. attorney in New York and an expert on criminal procedure, said that Clemens did not come across as credible and that it would not be surprising to see the former big league hurler experience more legal troubles in days to come. "I thought Roger Clemens did not come across well," said Darmer, a professor of law at Chapman (Calif.) University. "Coming at it from pretty much an open mind, I just thought he was not credible. He's obviously got a lot to lose with his denials, but if I were his lawyer or his family, I'd be worried about perjury charges."

Darmer said that Clemens may have been ill-advised to testify before Congress, especially after Rep. Henry Waxman (D-Calif.), the chairman of the House Committee on Oversight and Government Reform, said Wednesday that he was prepared to shy away from holding the hearing. Clemens insisted that he wanted an opportunity to set the record straight against lingering charges from his former trainer, Brian McNamee. Darmer said she believed Clemens thought he would have been able to better convince the committee of his innocence. "I think it backfired," Darmer said. "This may not be the majority view, but in watching these two guys, I just thought Roger came across as [less] credible. They were able to point to a number of inconsistencies, particularly his deposition denials, where he denied repeatedly that he'd had any conversations with McNamee about [HGH], and then later, he said, 'Except for when my wife [used].' It didn't add up."...

Darmer noted that, before Congress, Clemens attempted to steer several questions and did not answer in a straight-forward fashion at times, especially when inconsistencies in his testimony were pointed out.... "Somebody's lying, obviously. There's no way you can reconcile these two stories, and I think there's a lot of ways you can't reconcile Clemens' own story. Given that there's an independent third party [in the form of Andy Pettite], I think Clemens could face charges."

Darmer said that Clemens' tours of Capitol Hill on three recent days, going door-to-door to meet with as many representatives as possible, were an ill-guided attempt to exert influence. "He's got star power, and I think he was hoping he could use that and leverage that," Darmer said. "He's a national hero and a lot of people love the guy. As a federal prosecutor looking at these guys, I think Clemens is in trouble."

Should Congress not pursue the inconsistencies in Clemens' story, Darmer said, the message to the American people would not be favorable. "To me, it would look like they are giving special favors to a well-loved sports hero," Darmer said. "I think almost anyone else that appeared before Congress and told what, I believe, will turn out as bold-faced lies, would face consequences. Were they to just let it slide, I don't think that would look good for Congress."

Though Professor Darmer is focused on how it would make Congress look if Clemens does not have perjury charges, I am more concerned about how it looks from a racial justice perspective.  As I noted in prior posts here and here, I am troubled that the highest profile athletes to be prosecuted for lying about steroid use have all been African-Americans (Barry Bonds, Marion Jones and Dana Stubblefield).    Though I am not making direct or even indirect allegations of biased prosecutorial practices, I do consider the pattern worthy of commentary and critical reflection, especially if Clemens ultimately escapes having to face an indictment under all these circumstances.

February 13, 2008 at 07:48 PM | Permalink

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Comments

Doug, why are you troubled? No one is prosecuting Palmeiro. And Clemens, while not believable, in my opinion, also is being accused by a pretty unsavory character. Unless there's a smoking gun proving Clemens lied, I think this would be a difficult case to win.

Let's flip the races, Doug, are you concerned that white murderers in the US are more likely to be executed than black murderers? Are you concerned about cases such as Lemrick Nelson's, where black defendants get a break?

And do we really want to be making prosecutorial decisions based on racial optics?

I think your protestations about being "troubled" are simply hand-wringing.

Posted by: federalist | Feb 13, 2008 9:07:47 PM

Race or no race, I thought Clemens was very believable. A prosecutor might want to throw a Hail Mary, as it were, and see if a jury would convict. That's what they often do, it seems to me, especially with high profile cases. Seems like he-said / she-said with no physical evidence.

It was quite interesting how the Democrats seemed to go after Clemens, while the Republicans seemed to go after "Dr." McNamee.

It is also interesting that Professor Darmer does not appear to point specifically to a single material statement by Clemens that she thought might be the basis for a perjury prosecution.

I was thinking about this the whole time I was watching. I just don't see what Clemens had to say that is a provable, material lie.

Posted by: Michael Ausbrook | Feb 13, 2008 10:07:29 PM

Just curious, why are you so sure Clemens is guilty? I saw the whole testimony (I took a few days off to prep for a major case with just me,the baby, the tv, & a large pile of discovery). I found Clemons more believable than his accuser and thought that there was a real possibility that Clemens, who seems somewhat gullible, immature, and/or fresh off the farm, believed he was getting B-12 andother legal shots but who instead was getting banned substances. The problem the feds are going to have is proving that their snitch/trainer is more credible than Clemens beyond a reasonable doubt. This is far from an open and shut case, rather it is he said vs. he said where the gov't's witness is an admitted liar and perjurer.

I believe Roger when he says he wasn't (knowingly) injected. Call me gullible, but I don't think you wouldn't find a jury in my state that would convict. Oh yeah, and Winstrol, which Roger is claimed to have been injected with, can be taken orally with (according to wikipedia)equal efficacy as injection.

Posted by: karl | Feb 13, 2008 10:11:34 PM

I share Karl's thoughts with a twist. The more I heard Clemens deny and the other guy insist, the more compatible I thought their lines were. Clemens, by his repeated non-responsive and dramatic denials appears to be warming up for a plea of ignorance. So, the other guy is right (he injected Clemens) and Clemens is right (he believed he was not being injected with anything illegal). It would seem to be pretty hard to prove what Clemens knew and did not know at the time of the injections. Throw in some lies and misrepresentations by the other guy and everybody walks.

Posted by: P.S. Ruckman, Jr. | Feb 14, 2008 1:57:51 AM

Did you people watch the same hearings that I did? Clemens was not believable in any way, shape or form! His best friend corroborrated McNamee's assertion! If anyone had reason to back Clemens, it was Pettite. Clemens and his representation stonewalled the Committee on the location of his nanny, (who McNamee has always asserted could back his statements about Clemens and his family being at Canseco's). Instead of giving the Committee the Nanny's information, Clemens calls her and invites her to his house after not talking to her for seven years?! That doesn't trouble anyone?! It certainly troubled the Committee and me! Especially when the Nanny not only corrborated McNamee's story, she stated that Clemen's HGH using wife and children stayed overnight at the Canseco's. Oh...and let's not forget the MRI stonewalling, and conclusions by an unbiased expert. McNamee's sins as put forth by Clemens Flunky Representative Burton was that he lied to reporters and authors writing books. He never lied to investigators or under oath. If we think that lieing to reporters and authors is worthy of scorn, well Representative Burton had better look in the mirror.

Pettite's testimony in and of itself makes Clemens' assertion ludicrous! Someone please give me ONE reason why Pettite would corroborate McNamee and state that Clemens told him of using PED's in 1999 or 2000?

Clemens is a liar and a cheat and I agree with Professor Berman, if the Feds don't at least investigate Clemens with the same vigor as they went after Bonds, Jones and Stubblefield, justice is not color-blind!

Posted by: Fred G. Sanford | Feb 14, 2008 7:06:46 AM

Clemens ego apparently convinced him that he could stand tough before a congressional committee in the same way he did so well on a pitcher's mound when he was in a jam. His lawyers would have done well to remind him that his curveball was never his best pitch.

Posted by: Scott Taylor | Feb 14, 2008 8:43:41 AM

Clemens shouldn't be indicted and the indictments against Bond, Jones and Stubblefield were all a PR-driven disgrace.

And Doc, I disagree strongly that prosecutors should pursue Clemens because of how it looks to only have gone after blacks so far. Public relations is NOT a reason for prosecution. If you want to send a message, rent a billboard. I'm embarrassed for the nation by this whole episode.

As for the merits, I got to watch part of it and I don't think the case could be won in court. It just boils down to a tenuously corroborated snitch with a shady past and a history of lying.

IMO Clemens shouldn't have been included in the Mitchell report - they didn't have the kind of financial transaction records linking him to steroid use that they did for other, lesser players, just McNamee's word. This was a pure media circus driven by grandstanding pols, and it would be a travesty (as it is in Bonds' case) to try to put someone in prison over it.

Posted by: Gritsforbreakfast | Feb 14, 2008 9:11:39 AM

I watched the entire hearing. There is not a shred of evidence to corroborate the admitted liar and con man McNamee. Major League Baseball hired and validated this "doctor". The notion that McNamee was surreptitiously injecting hormones when it was said to be vitamin B-12 is off-base and a diversion.

What should concern Americans is the circus atmosphere in which the "hearing" was conducted. There were twenty times as many cameramen in the room as there were Congressmen. The Chairperson of the Committee was self righteous, overbearing, sneering--an outright Joe McCarthy clone.

At one point an accusor was asking Clemens why he thought that vitamin B-12 was somehow beneficial. I would like to have seen a show of hands in the room of vitamin B-12 users on that one.

They trotted out a report of a non examining doctor who opined that his interpretation of an MRI was different than the opinion of the examining physician who had seen the MRI scans and not just the MRI report. When the primary evidence was offered Waxman admitted it with derision.

The political fault lines were strange. The Democrats were cuddling up to the Mitchell Report and to the admitted liar McNamee who sat before them. Mitchell's lawyer sat there between the liar and Clemons, smirking.
Maybe some of the Congressmen resented Clemons making the rounds of their offices lobbying his case. Had he been a lobbyist for some drug company I am sure he would have been more well received. They never seem to have time for folks coming round who are not bearing gifts.

The only thing I would fault Clemons for is thinking that he would get a fair hearing before this group of self righteous hypocrites.

If after reviewing all the evidence one can say that they do not find Clemons credible it can only be based on finding the liar to be credible. The Andy Petitte statements do not corroborate any statement of the liar McNamee. Think about your own experieces. Things that one says to another person are often misheard. Some people hear the opposite of what was said and will say the opposite of what is in their head at the moment they are speaking.

Unfortuneatly my Congress member was not on the Committee. Therefore I do not have anyone I can rail at for the circus McCarthy type hearing. What purpose of freedom of the press does it serve to have thirty or more groundlings on the floor right in front of the witness table? A camera on the wall providing a common newsfeed would serve the purpose of providing photos or video of the witnesses or the accusors.

Any prosecutor who thinks that this is a case in which the liar will be believed over the defendant should apply for a teaching job.

Posted by: M.P.B. | Feb 15, 2008 9:35:37 AM

Why are our tax dollars being wasted on this mess? We had a president who lied under oath and he didn't go to prison!!!! Let's focus on something more important. We already have enough non-violent offenders in prison which is a huge waste of taxpayer $$$!

Posted by: ShellyT | Feb 17, 2008 10:17:27 AM

Anyone saying Clemens was believable is an ass. Duhhhhhhhh. He "mis-remembered". If clemens had been hooked up to a lie detector it would have been flaming with smoke. Fools. Oh right and now it turns out that low and behold, there are photos of liar Clemens at the Bar B Q. HMMMMMMMMMMMMMMM. So many people lying for Clemens. Now this is a conspiracy. Oh my god and those awful lawyers for Clemens. These guys are the ones everyones talking about when they tell that "Its a good start" joke about the 75 dead lawyers at the bottom of the sea. Yuck. Gag me with spoon. Clemens will serve time just like the black folk. Those lawyers deserve time and hard labor for defaming Brian McNamee. Free Brian McNamee don't believe the lying lawyers. Go Brian, Go Brian, Go Brian. Go Brian.....

Posted by: Bo Law Man | Feb 25, 2008 10:53:27 PM

As for smarmy Shelly T above. You don't get it. This is about justice as for all men. Whitey needs to pay the piper for the same missdeeds as African Americans. Knee Jerk fools like you miss the nuances of equity in life. Many of us watched Clemens lie boldly to the world under oath. This is the same crime that is sending Barry Bonds to jail, Marion Jones to Jail and the other guy from football...all black folk. Now, Clemens is Bushes buddy and all of those right wing jackass house members who got pics and autographs and no doubt a slap on the ass for Clemens-buddies too...they all want to look the other way just like you do Shelly T. Well we Americans in pursuit of equal justice for the white man see Clemens as the perfect opportunity to raise awareness about good old corrupt justice in America. Besides, Clemens is a mean prick masquerading as a good guy helping the children. Bullllllsh#@&*. Shelly, I'll bet youre going to vote for Ralph Nader huh.

Posted by: Bo Law Man | Feb 25, 2008 11:04:15 PM

One final point to all the cluuuuuuuuuless wannabe Perry Masons on here. Now that Clemens is getting the case referred to Justice the investigation will begin. OHHHHHHH. Light bulb going off. Now they will investigate and interveiw all of the players and seek out evidence and more witnesses blah blah blah blah. Any stupid as fool who thinks that the Feds case will rest solely on Clemens lies in Congress is a sleepy eyed dingo missing his best nut. Sorry folks The investigation begins now. Let the games begin. Wow I love this. Wouldn't it have been easier for Roger to just deliver that line about just taking a few shots to help get over various injuries. You know the same one crafted by what's his name. Oh well.

Posted by: Bo Law Man | Feb 25, 2008 11:12:51 PM

I've read so much about Clemens and watched countless tapes of him, observing his body language. His lies are so obvious and I'm hopeful he'll pay the price, as he should. I am a principal broker, but also a sports lover who would like to see justice carried out. Stan

Posted by: Stanley A. Cobb | Apr 4, 2008 5:15:40 PM

What I find interesting about all of this is that now Roger Clemens is supposed to be the bearer of equity in a racial issue? Because Bonds and others got charged and is having to pay the price, we should overlook the EVIDENCE in this case in order to make the situation racially equal. How RIDICULOUS! Anyone can look at Clemens' testimony and put their own views into play about whether "he looked guilty", but ask anyone of you if you were sitting before Congress, how would you be feeling. Maybe Clemens' decided he wanted to go to Congress because in his heart, being the proud american like me, went in with the "fairytale land" thought that this was America, the best place in the world to live and was maybe thinking, as I would have, "all I have to do is go before them, tell them what happened and because I am telling the truth, this will all be done an over with." Ha! What a joke! I watched that hearing and nobody was interested in getting to the truth. They asked the questions and allowed no back and forth communication whatsoever. It was all about our politicians trying to get re-elected to their "never ending terms of office."

I was so dissappointed in how that went down. I wondered if I was even proud to be an American anymore. It was disgusting. It's my opinion that Brian McNamee had this planned for years. He is a miserable, jealous, money and fame whore who layed out his plan. Yeah, Yeah, Pettitte and Knoblauch admitted....but they're NO Roger Clemens. He's shopping a book and has already been selling memorabilia on Ebay supposedly to benefit his son's charity, yet I was bold enough to ask for an EIN number from the IRS of that charity and got no response.

He claims to have been mad at Roger for outting his sons illness in the infamous taped phone call, yet he's had a website for years trying to scalp money for his supposed charity.

Most importantly and more telling to me is that he saved his "supposed" evidence because he wanted to protect himself....how could he have known in 1997 that in 2007 there would be a hearing on steroids in baseball?

He's a liar, plain and simple and is going to make millions of the back of someone who has spent his life entertaining sports fans around the world.

Shame on all of you....go read the information on the congressional website. Be completely informed before you going ruining someone's life.

Posted by: | May 14, 2008 2:29:47 PM

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