Roger Clemens Indictment: a Legal Perspective
Roger Clemens still holds his cards. How he plays them will of course have a huge impact on the rest of his life. Perhaps more importantly from a social perspective, Clemens' litigation strategy could also have a huge impact on the past and future of major league baseball and even professional sports more generally.
The fact that the indictment has been issued actually helps Clemens to a degree. The indictment means that the prosecutor at long last has shown his hand. He has played his cards, and judging from the shape of the indictment, the prosecutor is playing his hand aggressively. The indictment consists of two counts for perjury in lying under oath to the Congress, three counts of lying under oath in his deposition, and one count of obstruction of the Congress. These are a lot of counts, considering that they basically derive from a single episode of criminal conduct, namely Clemens' voluntary appearance before the Congressional committee. Clemens could end the matter right here, by pleading guilty, accepting the conviction, and hoping for a decent sentencing outcome. The fact that the counts arise from a single episode, coupled with a guilty plea, would give Clemens a significantly mitigated sentence, although it would most likely include some prison time.
But the fact that the prosecutor has played his hand so aggressively basically rules out any incentive Clemens might have to plead guilty as charged. By so overbidding, the prosecutor is in effect inviting Clemens into a negotiation that will likely result in a compromise, probably on a single count of perjury. Clemens will plead guilty to a single count, pay a steep fine, serve some time in prison, and that will be the end of the matter.
It could have been so much more.
1. Prosecutors typically charge at the "high end" of the provable evidence. In other words, prosecutors will indict on as many counts and on as many legal theories as the prosecutor believes the evidence will support, given the stringent standard of proof in a criminal case. This typical approach works best in this era of overflowing dockets and rampant plea bargaining. By starting with the high bid, the prosecutor leaves plenty of room for an adequate plea agreement. The strong charge also gives the defendant a commensurately strong reason to negotiate a reasonable plea. If the defendant refuses to bargain and instead stands trial on the indictment, the defendant could be convicted as charged, with severe sentencing consequences to follow. Although criminal defense lawyers decry the practice, the habit of prosecutors to frame their charging decisions by the full extent of the law actually greases the skids on an otherwise unworkable and archaic system of criminal justice.
2. The prosecutor should not have treated Clemens as just another defendant. Celebrities are often treated "specially" in sentencing: many judges have justified imposing unusually harsh sentences on convicted celebrities on the grounds that the defendant's notoriety presents an opportunity for a strong deterrent message. In other words, the criminal courts have used the opportunity in sentencing celebrities to achieve other social aims. Prosecutors and judges will use the celebrity at the sentencing phase; why not use them at the charging phase too? Instead of bringing impossibly severe indictments, why not indict celebrities on a single, strong count? Why not leave no room for plea bargaining? The celebrity would have no reason to settle. He could plead guilty and take his medicine (the likely outcome from a negotiated plea anyway), or more likely, take the case to trial. Instead, with his severe indictment the prosecutor is basically giving Clemens every incentive to plea bargain. The result is that we will be cheated out of a trial.
3. And what a trial it would have been. The issue in the perjury case is whether or not Clemens lied to the Congress. But the underlying issue is the real one: did Clemens in fact take performance enhancement drugs? The prosecutor's case would have ripped open the seamy underside of professional sports. The unseen world of drug suppliers and steroid smugglers that shadows pro sports would have been brought to light. The locker room culture of shared information and shared bathroom stalls would have been made plain for all to see. Teammates, trainers, coaches and managers and many others would have called to testify. This trial would not be another feckless "Mitchell Investigation" that had to beg reluctant witnesses to share their stories. This would have been a federal criminal trial, with subpoenas flying all around the baseball world, followed by vigorous cross-examination under oath. This would have been very serious business.
4. My suspicion is that a full-blown trial of the famous former member of the New York Yankees would have been the source of daily revelation and shocking news. A Clemens trial could have generated real public momentum for reform and even a serious commitment from lawmakers and league officials to separate baseball and all professional sports from their historic drug culture. A lot of public good might have come from the latest trial of the century. Yes, trials are expensive. But aren't they sometimes worth it?
5. Instead, what we'll likely see soon is a negotiated plea arrangement. The saga of Roger Clemens will be regarded as nothing more than the sad example of the high being brought low, of a fall from grace for a former all-star pitcher. The Clemens case will provide nothing more than the fulcrum for that fall. There is certainly a public interest in punishing the guilty, don't get me wrong. Certainly the case will generate a new respect for the importance of telling the truth under oath. But the case could have accomplished so much more. Following the leads a trial would inevitably have generated, the Clemens case could have started us on the ultimate trail of truth: it could have told us who used and who didn't. Wouldn't it be great, as we (supposedly) turn the page on baseball's steroid era, to know who used and who did not, if only for the sake of baseball's records and baseball's criteria for the Hall of Fame?
I'm hoping the prosecutor pares down his indictment substantially so that we're left with a single count or two. Make this charging indictment into a document on which Roger Clemens can plausibly stand trial. My suspicion about Clemens is that, faced with a reasonable challenge, he'll accept it and try to make his case before a jury. That turn of events would be in the public interest.
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AUTHORS POINT #5
I'm hoping the prosecutor pares down his indictment substantially so that we're left with a single count or two. Make this charging indictment into a document on which Roger Clemens can plausibly stand trial. My suspicion about Clemens is that, faced with a reasonable challenge, he'll accept it and try to make his case before a jury. That turn of events would be in the public interest.
COMMENT
I applaud your experience in law, and I myself have learned from this experience, even though we have differing views on this issue, your views are enlightening, to a degree.
I'll leave, for now, with these conclusions, redundantly.
1. I have NO REASON to believe Roger lied.
2. I believe celebrities should be treated with an "equal protection of the law, under the US constitutional protection of the 14th amendment, and NOT be used, to make an example, based on the media hype alone.
3. I believe Roger is the only one charged here, for perjury, and that MLB and alot of it's players need not be dragged into this case, based on "shocking the conscious" of society.
4. I believe alot of government and other forms of the entertainment industry also have issues, and to drag them all through the media meat grinder, in a McCarthy-istic fashion, is NOT benefitial, the problem of steroid use HAS been addressed, and corrected, no ned for this Archaic form of "bring me some heads" type mentality, after the fact, the GOOD people in Congress, have resolved the issue.
5.I believe, dismissing this case on the basic fact, that roger could not even be convicted of smoking weed, based on this evidence of hearsay, and speculation based on hearsay, then trying to "pull the cart before the horse" is UNJUSTIFIED, and would be building this case on a foundation of SAND, that could easily sink, and disgrace the GOOD people of Congress, and all the GOOD work done to this point.
CONCLUSION
I believe dismissing this case, or holding this case, and if Roger is found with any connection to steroid use, in the next 3, 5, or how ever maany years, then this charge can be tried -- If it is tried now, based on this WEAK evidence, and the government loses, their is NO DOUBLE JEOPARDY - PERIOD!
AUTHORS POINT
5. Instead, what we'll likely see soon is a negotiated plea arrangement. The saga of Roger Clemens will be regarded as nothing more than the sad example of the high being brought low, of a fall from grace for a former all-star pitcher.
COMMENT
You could be right, very much so. My opinion still is, I still have NO REASON to believe that Roger is lieing, I have NO REASON to believe that Roger is NOT anything other than a victim in this circus, and that all the work done so far to fix this ugly mess, and stain upon major league basebal, might end up a CONGRESSIONAL FAILURE, simply based on the fact, that their is NOT even enough evidence to convict Roger of chewing tabacco, other then hearsay, and speculation based on hearsay, and if Congress fails to get a conviction, then most of the shame will fall upon Congress, instead of where it lies, right now, on MLB .
AUTHORS POINT
The Clemens case will provide nothing more than the fulcrum for that fall. There is certainly a public interest in punishing the guilty, don't get me wrong.
COMMENT
What I believe is wrong, is to drag this UGLY mess, and smear it around, after the fact, of the problem being fixed/remedied... MLB KNOWS NOW, that Congress is watching, and Congress is Monitoring, and Congress has achieved it goals, in fixing this problem, to go any further may just backfire on their own good name, in accomplishing a deed, that NO ONE else could address.
AUTHORS POINT cont.
Certainly the case will generate a new respect for the importance of telling the truth under oath.
COMMENT
It may, but do you think it would be addressed EQUALLY, or just in self serving manner...... Do you believe that congress would be more adamant is prosecuting other members of Congress, Do you think Congress would be more adamant is prosecuting LOBBYIST, CORP exec's (who should be held to a higher standard as government officials or CORP/persons??????
AUTHORS POINT cont.
But the case could have accomplished so much more. Following the leads a trial would inevitably have generated, the Clemens case could have started us on the ultimate trail of truth:
COMMENT
I believe that case would only be seen, if justice was abused.
1. Roger Clemens is the ONLY one on trial here.
2. major League baseball, and all of it's players are NOT on trial here.
3. Roger clemens is on trial for PERJURY, and NOT for steroid use... he is only being charged with perjury type crimes.
AUTHORS POINT cont.
it could have told us who used and who didn't. Wouldn't it be great, as we (supposedly) turn the page on baseball's steroid era, to know who used and who did not, if only for the sake of baseball's records and baseball's criteria for the Hall of Fame?
COMMENT
I believe the purpose of the judicial branch is to reform, the prison systems are for reform....... I also believe the steroid use has been reformed. The mission has been accomplished.
and this trial, may only be an unkowingly result, of unkowingly trying to glorify the accomplishments, in an archaic form....somewhat like this, back in the cave man days, if someone slayed a beast, everyone wanted to see the head of the beast......that's archaic, you can easily see the body is dead, but they want the "head on a stake".
It's just an archaic philosophy, that easily can be confused with a "civil society", or maybe NOT, if we head for the latter, while go backwards into the former.... we are a better Nation than that, or, at least, I believe, we are supposed to be!
AUTHORS POINT #4
4. My suspicion is that a full-blown trial of the famous former member of the New York Yankees would have been the source of daily revelation and shocking news.
COMMENT
I believe You're probably right, But does "shocking the conscience" of society, espiecally kids, who look up to these people, then "shocking that conscience" with this "reprehensible" offense, then again, doing both the Latter, and the former, on a daily basis -- does that have a purpose, that is redeemable, other then to smear some people with "guilt by association", just for being a part of MLB ?
AUTHORS POINT #4
A Clemens trial could have generated real public momentum for reform and even a serious commitment from lawmakers and league officials to separate baseball and all professional sports from their historic drug culture.
COMMENT
I saw North Dallas 40 way back in the 70's, so I understand the prescription medication situation to address injuries in sports..... do people who make millions of dollars a year use drugs????? I say some may, but in sports the testing is SO INTENSE, that drug use is almost one of the downfalls of any athlete, unlike politicians (who are government), or other people in the entertainment field.... Let's remember Sports is just entertainment, just plain and simple entertainment, and I bet more people drink beer while watching this entertainment then most other forms of entertainment -- besides gambling in Vegas..... but wait, some people gamble in vegas on sports too.
AUTHORS POINT #4 cont.
A lot of public good might have come from the latest trial of the century. Yes, trials are expensive. But aren't they sometimes worth it?
COMMENT
I agree, some trials are worth it, trials that have a redeeming value, But I see COngress as doing ALOT to clean up MLB, and they have succeeded in closing down most of the steroid use, and MLB would have done little to clean it up, the sports media would have done little to clean it up, and CONGRESS STEPPED in, but now I think with this Roger Clemens case, they are overstepping their bounds...... AGAIN, redundantly I say,
1. Roger has NOT been convicted of steroid use.
2. Their is No credible evidence to do so, other then hearsay or speculation based on hearsay.
3. I do not even think you could convict anyone of smoking weed with this type of evidence, based on grants of immunity.
4. I believe Rogers "good name in the community" will be damaged (life and liberty)
5. Just because the Congress and all the good work they have done, dealing with this difficult issue. It seems, that some in congress, want to put a sacrificial cherry, on the sundae of good work, that they have accomplished so far. And may ruin the difficult process and accomplishments, that they have achieved, by diminishing their own good name.
6. I believe these charges should be dismissed, or put on a very long hold, say YEARS, under the condition, that if Roger is caught, having any future involvements with steroids, then the proof will be THERE, for a perjury charge.
7. For if the government goes to trial, and loses, they can NOT bring these charges back up again, that would be double jeopardy, but if they wait 3, 5, or 7 years, and if Roger is caught, THEN, they have some credible evidence, even if "after the fact". which is somewhat better then hearsay, or speculation based on hearsay.....OMG
AUTHORS POINT #3
3. And what a trial it would have been. The issue in the perjury case is whether or not Clemens lied to the Congress. But the underlying issue is the real one: did Clemens in fact take performance enhancement drugs?
COMMENT
My opinion, you MAY be right, BUT, in LAW, in my opinion, Roger is being charged with perjury, for lieing to a congressional committee, and whehter or NOT, that is a criminal offense, as an individual. Many other "persons" with a government title, have also done so, BUT it was NOT criminal then.
Is perjury lieing about a CRIME, or is perjury lieing about a MLB guideline.... it was NOT a crime to take steroids under a Doctors care......... also could Roger have ever taken steroids after a rehad, for an injury, and he actually didn't remember it?
I believe someone else stated "unkowingly" even after they tested positive........ has ROGER ever "TESTED POSITIVE" for steroid use???????
Could you convict someone, because someone else stated, yeah, I saw him smoking weed, or better yet, yeah, he told me he smoked weed before.......... I don't think you can convict someone in a court of law, based on that speculative evidence, it's heasay, and nothing else......
so how could you convict them of perjury, if you could NOT even convict him of the crime????????
Very serious questions in my opinion, but again, only my opinion.
AUTHORS NOTE #3 cont.
The prosecutor's case would have ripped open the seamy underside of professional sports.
COMMENT
again, just my opinion, but when an admitted supplier and administer has already copped a plea, i think the seedy underworld, or the armpit of the problem has been exposed, and in all the good work of congress, the congress itself, it looking for a body, to pin this ugly armpit onto.
AUTHORS POINT #3 cont.
The unseen world of drug suppliers and steroid smugglers that shadows pro sports would have been brought to light.
COMMENT
again, I believe the ugly armpit of this perjury charge is already exposed (supplier and administrator/needle injector), and they are just looking for a body to pin to it, and Roger may have just been a victim of this possible organized confessions, in order to get IMMUNITY.
AUTHORS POINT #3 cont.
The locker room culture of shared information and shared bathroom stalls would have been made plain for all to see. Teammates, trainers, coaches and managers and many others would have called to testify. This trial would not be another feckless "Mitchell Investigation" that had to beg reluctant witnesses to share their stories. This would have been a federal criminal trial, with subpoenas flying all around the baseball world, followed by vigorous cross-examination under oath. This would have been very serious business.
COMMENT
Can I take the 5th now, and make my 5th JACK DANIELS -- PUH-LEEEZ..........
I have NO REASON to believe Roger is NOT telling the truth, but the witnesses in this case, if gone un-contested, by objections of irrelevant, hearsay, and other objections, and this trial just took a soap opera approach to feed society another Paris Hilton type drama, addded by all the other players, who are NOT RELEVANT to any PERJURY CHARGE........... NO OTHER PLAYERS are involved in this PERJURY CASE, I believe only ROGER is charged with perjury, not MLB......!
But some cases, and some attorneys/prosecutors like a media namesake to enhance their financial careers........
Remember this is a perjury charge, and their is NOT enough evidence in this case to even convict Roger of smoking weed (with the testimony's of others), in other words, I do NOT believe you could convict Roger of steroid use (if it was against the law) with this loose evidence their are "POSITIVE DRUG TEST RESULTS" just hearsay, and speculation, based on hearsay, by some who have received immunity for their testimony.
In other words, I don't see a perjury conviction, without first a drug conviction, and could you convict Roger of drug use, on this loose evidence, and then actually prove he lied....
Once again,
1. I have NO REASON to be Roger is leing!
2. But proving a case against perjury, i believe first is to prove if the charge is valid, and in doing so, it may look as if Roger is just trying to "beat the rap".
3. and I believe it demeans Rogers good name in the community, just by having him stand trial on these charges.... because first and foremost, I believe in trying the CHARGE of PERJURY, and I believe in order to prove this is an unwarranted charge, that Roger would need to be convicted of steroid use, in order to prove he commited perjury.
4. Roger is NOT on trial for steroid use.
5. I believe it is the "cart before the horse" scenario......
6. That the prosecutor has absolutely NO FOUNDATION, in place, to begin building a case.... this will be a case built on sand.
7.Some say you need to build on a foundation of ROCK, and all I see is SAND here.
AUTHORS POINT #2
2. The prosecutor should not have treated Clemens as just another defendant.
COMMENT
I believe if the prosecutor treats Roger Clemens differently that any other defendant, then the prosecutor MAY be violating the "history and spirit" along with the dejure law, of "equal protection of the law" guaranteed by the 14th amendment of the US constitution.
AUTHORS POINT #2 cont.
Celebrities are often treated "specially" in sentencing: many judges have justified imposing unusually harsh sentences on convicted celebrities on the grounds that the defendant's notoriety presents an opportunity for a strong deterrent message. In other words, the criminal courts have used the opportunity in sentencing celebrities to achieve other social aims.
COMMENT
I believe again, that is in violation of the "equal protection of the law"m clause of the14 amendment.........politicians government officals in their PERSONal capacity, could be different, But I believe Roger Clemens is a "private individual" with individual rights, and even though he is seen as a "public person/celebrity", he does NOT fall under the "person" standards, as described in BLACKS LAW DICTIONARY.
AUTHORS NOTE #2 cont.
Prosecutors and judges will use the celebrity at the sentencing phase; why not use them at the charging phase too? Instead of bringing impossibly severe indictments, why not indict celebrities on a single, strong count?
COMMENT
I believe you have already answered that question with your own point, from #1 "greases the skids on an otherwise unworkable and archaic system of criminal justice."
AUTHORS POINT #2 cont.
Why not leave no room for plea bargaining? The celebrity would have no reason to settle. He could plead guilty and take his medicine (the likely outcome from a negotiated plea anyway), or more likely, take the case to trial. Instead, with his severe indictment the prosecutor is basically giving Clemens every incentive to plea bargain.
COMMENT
I have Federal law on RICO Charges, which this is NOT, as to where the prosecutor SHALL NOT add additional charges in order to encourage a plea deal......... I believe I have the specific code and section, it might be out of the US Attorneys Manual, or some other Federal prosecutors guidelines book.
AUTHORS POINT #2
The result is that we will be cheated out of a trial.
COMMENT
The word "cheated" seems to ring a stinging bell...... "in the best interest of Justice", I believe is a more proper term
AUTHORS POINT #1
"Prosecutors typically charge at the "high end" of the provable evidence. In other words, prosecutors will indict on as many counts and on as many legal theories as the prosecutor believes the evidence will support, given the stringent standard of proof in a criminal case. This typical approach works best in this era of overflowing dockets and rampant plea bargaining. By starting with the high bid, the prosecutor leaves plenty of room for an adequate plea agreement."
COMMENT
I agree and will add, as in the bloga-yada-yada-vich (CHicago politician just convicted, sorry I don't have his actual name handy, and this was not to slight him in any defense), But I believe, in my opinion, that prosecutors will add as many charges, in some suituations, as to allow for their OWN ERROR, in order to get at least 1 conviction, and possibly lose 5,10,15, or sometimes 20, and in blogo's case, I believe 24 charges were not convicted......... but the prosecutors did get 1 charge conviction..........
in other words, instead of charging some high profile case with 1 charge, they add, and add charges, to make sure that they get it right at some level... instead of looking foolish, and the media reports, they charged him with the wrong crime .
AUTHORS POINT #1 cont.
"The strong charge also gives the defendant a commensurately strong reason to negotiate a reasonable plea. If the defendant refuses to bargain and instead stands trial on the indictment, the defendant could be convicted as charged, with severe sentencing consequences to follow."
COMMENT
He could be, or he also could be like Blago, and only be convicted on 1 charge, based on the simple fact, that he may --- (I say may, because I believe Roger is innocent, and he did NOT knowingly willfully and intentionally lie to congress, and he may NOT have lied AT ALL.... the case is still young) --- have only committed a simple lie, not 6 seperate violations of different laws
AUTHORS POINT #1 cont.
"Although criminal defense lawyers decry the practice, the habit of prosecutors to frame their charging decisions by the full extent of the law actually greases the skids on an otherwise unworkable and archaic system of criminal justice."
COMMENT
I believe your term "unworkable and archaic system of criminal justice" verifies my points, that prosecutors are only human, and they make mistakes also.