Roger Clemens just missed election into the Baseball Hall of Fame yesterday. The guy many people consider the greatest right-handed pitcher in history just whiffed on his seventh try. If we listed his awards and records, we’d run out of space and you’d drift off.
Point is, he’s an obvious Hall of Famer who isn’t in the Hall and the reason is cheating. Cheating is the big baseball topic of the day, the Astros sign stealing scandal is national news. Clemens is a holdover from the last major sports scandal – steroids in baseball.
But we’re not writing about all that today, we’re not writing about Roger ‘Rocket” Clemens and his seven Cy Young awards, we’re writing about Roger Clemens, federal criminal defendant. And a different kind of cheating.
In 2008, Clemens appeared with several other players before Congress to testify about steroid use in Major League Baseball. At some point in the hearing, Clemens – who was under oath – said that in his “twenty-four-year career I never used performance enhancing drugs.”
Congress didn’t believe him. Lying to Congress is a felony (though obviously selectively enforced), they referred the matter to the FBI. Two years later, Clemens was indicted on six charges of perjury, obstruction of Congress, and making false statements. He faced a possible 30 years in prison (possible but highly unlikely – always take these initial estimates with a very large grain of salt).
Since 97% percent of all federal indictments end in a plea deal, it’s a dead certainty that Clemens was offered a deal. Probably something like ‘plead guilty to one count, pay a fine, house arrest for one-year, supervised release for three more.’ It should be noted that Clemens could be confined to his Texas home for a year and still not have time to visit very room in the house,
Clemens maintained his innocence and went to trial. Most likely because he thought a conviction that he lied to Congress about using steroids was proof he did, indeed, use them during his career and that would kill his Hall of Fame chances. This is a situation, by the way, that many of our professional clients face – an admission for a light sentence and the end of the legal process could result in the loss of a professional license.
Clemens’ first trial lasted 11 minutes before a mistrial was declared.
Here’s what happened: there was no direct evidence proving Clemens was ‘juicing’ during the later part of his career. He won a lot of games after he turned 39, won a Cy Young Award at 41, and looked bulkier and fitter, but none of that proved anything. Besides, baseball history is sprinkled with players over 40 having great seasons
The main ‘evidence’ was other people’s statements. Most tellingly, a former trainer – fired by Clemens years earlier – who said he gave Clemens a steroid shot and had saved the needle . . . in a Pepsi can . . . he kept in his garage for ten years.
The prosecution wanted to use a statement by Laura Petite, the wife of Clemens’ close friend and Yankee teammate, Andy Petite, saying that Petite told her that Clemens had told him he was using steroids. The prosecution wanted to call Laura as a witness.
As anyone who has every flipped through a Law & Order episode can tell you, that is hearsay. The judge agreed in a pretrial ruling. Her testimony was not to be used in any way and she was not to be called to the stand.
A jury was selected, and the trial began. The prosecution opened by playing a video. Eleven minutes into the video Laura Petite’s statement was quoted by a member of Congress while a transcript of it ran across the bottom of the screen. It read, “I, Laura Petite, do depose and state, in 1999 or 2000 Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones.”
The judge cut off the opening statement and brought counsel to the bench. In the meantime, the TV was inadvertently left on in front of the jury with the statement still on the bottom of the screen.
It was the second time prosecutors had ignored the judge’s rulings about evidence. He promptly declared a mistrial.
Was it a mistake or cheating? There’s no way to know, except to say it would be ironic if the prosecution cheated to prove that Roger Clemens cheated.
The government retried Clemens a year later. That trial did make it to the jury. They found him not guilty on all counts.