August 30, 2010
Roger Clemens in federal court to be arraigned todayThis AP article, headlined "Clemens heads to DC, this time for court," reports on today's (legal) sports news. Here is how it starts:
On this trip to Washington, Roger Clemens will be in a courtroom, not in Congress. His defiant stance is expected to remain the same, even if his statement is much shorter. Something along the lines of, "Not guilty." The seven-time Cy Young Award winner is scheduled to be arraigned Monday in the nation's capital on a six-count indictment alleging he lied to Congress when he said he never used steroids or human growth hormone.
In what should be a short court appearance, Clemens will appear before U.S. District Judge Reggie Walton. If convicted on all charges, he could face up to 30 years in prison and a $1.5 million fine, though under U.S. sentencing guidelines, he would probably face no more than 15 to 21 months in prison.
All signs point toward him fighting. He came to Congress after being mentioned repeatedly in the Mitchell Report — the damning breakdown of the sport's steroid problem released in 2007.
In front of a House committee the next year, Clemens said: "Let me be clear. I have never taken steroids or HGH." Before his indictment was handed down Aug. 19, Clemens was offered a plea deal that he turned down, and afterward, he showed no signs of backing down.
"I look forward to challenging the Governments accusations, and hope people will keep an open mind until trial," Clemens wrote on Twitter after the indictment. "I appreciate all the support I have been getting. I am happy to finally have my day in court."
August 30, 2010 at 08:20 AM | Permalink
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I'm really enjoying this blog. I'm 40 years old, married, and a veteran of the Coast Guard. I'm working full-time at a major University and earning my undergraduate in History. I found your blog after doing some research on mandatory minimum drug sentencing laws (the movie "Guilt by Association" prompted me to do more research on my own). In regards to the Roger Clemens post, I still don't understand how they can go after him for lying if they can't PROVE he lied. Obviously they are basing this on hearsay. It's a "he said, he said" issue. This isn't justice, this is abuse of the system and taxpayer $$. Your thoughts?
Posted by: Jessica | Aug 30, 2010 11:05:42 AM
I still don't understand how they can go after him for lying if they can't PROVE he lied. Obviously they are basing this on hearsay. It's a "he said, he said" issue.
I think you are misusing the word “hearsay.” If Clemens’ former trainer testifies that he injected the pitcher with human growth hormone (HGH), then it is not hearsay, as the trainer is describing his own actions.
The law does not preclude convictions based on “he said, she said” evidence. If the jury believes the prosecution witnesses beyond a reasonable doubt, the fact that the defendant denies it won’t save him.
Mind you, I am not so sure that the Clemens prosecution is a good use of our tax dollars, but in terms of your specific question...no, it is not just hearsay.
Posted by: Marc Shepherd | Aug 30, 2010 11:15:15 AM
Legal hearsay is something more removed than "I gave him steroids." To be hearsay it would need to be "He told me he was juiced." or similar. The latter is not supposed to be admissible while the former is. And at that point it comes down to credibility and possibly other evidence (I seem to recall the turncoat in this case having given over some sort of relevant material, whether that was syringes or something else I'm not sure).The bit I find surprising here is that I would have thought any action on this would have needed to be brought by Congress somehow, not the executive. I would have thought the executive prosecuting such cases would raise separation of powers issues, and in a way completely different from Jefferson and other corruption cases.
Posted by: Soronel Haetir | Aug 30, 2010 11:24:38 AM
Not to devolve into an evidence course, but "he told me he was juiced" would be admissible as an exception to the hearsay rule as a statement against penal interest or admission by party opponent.
Posted by: Mark # 1 | Aug 30, 2010 12:34:16 PM
A better example would be calling the trainer's wife, who would testify the trainer told her that he had injected Clemens.
Posted by: Monte | Aug 30, 2010 12:50:42 PM
whole thing is still a crock! not to mention i would think the congress has bigger problems to worry about now then someone using a LEGAL drug at the time.
There there is the fact he said he didn't use it. Well let's see this old trainer looking at hard time says HE used it...I gave it to him. so they cut him a sweet deal. but never ask the main question DID he really? and even more important. did clemens even KNOW what this idiot was using in the needle?
Posted by: rodsmith | Aug 30, 2010 2:01:09 PM
I have to say that I'm not so sure Congress "has bigger problems to worry about now then someone using a legal drug...". Does Congress really have a problem bigger than prosecuting someone who allegedly "willfully and knowingly" lied under oath? I would like to believe that when we have the Secretary of Defense or commanders on the ground overseas testifying to Congress as to the state of global contingency operations, that they are telling the truth. How about hearings on health care, wall street fraud, pick your topic du jour.
Basically, in each of these Clemens postings, people are quick to say, "who cares, what a waste of time and money, there are bigger issues out there". I say that there is no bigger issue than people believing in our sacred institutions of democracy.
Posted by: Luke@CrimLaw | Aug 30, 2010 3:35:04 PM
And I would say Congress should have no power to compel testimony. Military and other government officials are a somewhat different matter but certainly Congress should have no such power when it comes to private citizens.
Posted by: Soronel Haetir | Aug 30, 2010 3:55:26 PM
The interesting thing about Clemens is that Congress did NOT compel his testimony. He asked to testify to rebut the allegations of his trainer.
When you ask to testify, and then perjure yourself, you make your own bed.
I also agree with Luke@CrimLaw that perjury before Congress should not just be laughed off.
Posted by: Bill Otis | Aug 30, 2010 4:44:04 PM
I keep seeing this Guidelines calculation of 15-21 months after trial -- that assumes no enhancements. I am betting he takes the stand. If he is convicted, after testifying, the Court almost has to enhance the sentence for further obstruction (2 levels) and there are possible enhancements for destruction of evidence, too. Not to mention the possibility of an upward departure based on the hubris of voluntarily going before Congress and then lying. I see more like 24 months if he goes to trial. A year and a day if he pleads. But he won't plead.
Posted by: sal | Aug 30, 2010 5:26:37 PM
I am all for Congress having endless hearings on stupid stuff. I wish they would have 25,000 hours of hearings on the BCS and the NCAA. Then i want them to have 25,000 hours on hearings on the propriety of the Designated hitter. Then I want hearings on the propriety of 90 foot base paths. This saves them passing more stupid laws that are leading this country to ruin.
Posted by: Scott | Aug 30, 2010 7:41:58 PM
It looks as if he may go to trial. If so what are the odds on jury nullification?
Posted by: beth | Aug 30, 2010 10:08:54 PM
no offence luke but considering the lies and more lie's that have been coming out of CONGRESS for decades they have no room to call anyone else a lier! and dont' even get me started on those crooks you mentioned who have been lieing to both congress and the PUBLIC for decades.
Posted by: rodsmith | Aug 30, 2010 11:23:06 PM
@RodSmith: If a Congressman is sworn in and told of his/her Constitutional rights before testifying and they lie, well, then they should be prosecuted also. Clemens asked to testify, took an oath to tell the truth in a VERY public hearing, and allegedly lied about taking an illegal substance. The government not only has the testimony of the trainer, but also another player (Andy Pettite, Clemens' best friend) AND physical evidence. The trainer saved the syringes with steroids and HGH that he used to inject Clemens, so it has Clemens' DNA on the syringes along with the substance. A little more then "hearsay" evidence!
Reasonable minds can agree or disagree on whether Congress should have had hearings on the topic, but once Clemens took the oath, he was obligated to tell the truth OR TAKE THE 5TH (an option that he refused to take).
Posted by: anon | Aug 31, 2010 10:03:35 AM
Correct in all respects. That plenty of lying gets done by Congressmen is a reason to be more stringent, not less, in enforcing honesty.
A related aside: We were promised two years ago that if Obama won, there would be a change in the way Washington works. And there has been -- it's worse than ever. Lobbyists everywhere, earmarks galore, hardball tactics, quasi-bribes to get wavering legislators on board, closed door meetings, party line votes with the opposition frozen out, etc. Probably the most memorable line was by Obama's principal Congressional ally, Nancy Pelosi. When reminded during the health care debate that Obama had said in the campaign that House committee meetings should be, not only open, but on C-Span, Pelosi sniffed, "Well, a lot of things got said in the campaign."
A more blatant and in-your-face celebration of cynicism is hard to conceive.
Yes, we were lied to two years ago about Congress, "post-partisanship" and a whole bunch of other stuff, and since then, as rodsmith correcty points out, Congress has been doing a boatload of lying itself. Exhibit A: "We can have a gigantic new entitlement program, but it won't have any net cost increase because we're going to cut waste, fraud and abuse from Medicare."
Is there anyone in the universe who actually believes that?
This does not excuse lying by Clemens or anyone else. But it should make independent-minded voters eager for November 2, and, from all the polling I've seen, they are.
Posted by: Bill Otis | Aug 31, 2010 11:42:32 AM
ahh but there's the rub anon!
"The government not only has the testimony of the trainer, but also another player (Andy Pettite, Clemens' best friend) AND physical evidence. The trainer saved the syringes with steroids and HGH that he used to inject Clemens, so it has Clemens' DNA on the syringes along with the substance. A little more then "hearsay" evidence!"
They may in fact have syringes and DNA but that doesn't PROVE he KNEW WHAT WAS IN THEM. From his point of view he may never have autorized any injection of that type and thought he was getting vitamins or other legal items...oh wait at that time so was the steroid!
so again we come back to congress has bigger fish to fry you know like their own members who are getting charged for just about everything lately they would do the public a lot better if they'd get off their asses and hold a few hearing and drag in their fellow congressmen and put them under PUBLIC OATH and ask them a few questions.
Posted by: rodsmith | Aug 31, 2010 1:49:06 PM
if anything his willingness to walk into congress and inform them HE NEVER TOOK THEM when he didnt' need to kind of brings the doubt more toward his side then a bunch of lieing congresman who are looking for ANYTHING to deflect the public from THEM.
Posted by: rodsmith | Aug 31, 2010 1:50:16 PM