Roger Clemens Indictment: a Legal Perspective

| by

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.