By Stephen A. Miller 

(Orig. published 7/11/11)

In the 2000 World/Subway Series, Roger Clemens hurled a broken bat at Mike Piazza.  In hindsight, we can ask: Was it “roid rage”? 

Clemens now finds himself on trial this  week in a real Washington D.C. courtroom concerning his use of performance-enhancing drugs (PEDs). 

Reportedly against the advice of counsel, Clemens testified under oath before congressional investigators on February 5, 2008, and again before the House Committee on Oversight and Government Reform on February 13, 2008.  Clemens was unequivocal in his testimony that he had never used steroids or human growth hormone.  He even claimed that he had never discussed steroids or human growth hormone with anyone else. 

Tall tales to reporters result in public skepticism and mocking in social media.  Tall tales to government investigators result in indictments for perjury and obstruction of justice.

At trial, Clemens will have a tougher row to hoe than Barry Bonds, who escaped with only a partial conviction in April by a hometown jury on similar charges.  In particular, Clemens doesn’t have a Greg Anderson in this trial — someone who purportedly injected the defendant with PEDs but refuses to testify (and goes to jail for that refusal).  Here, the injector will speak.  Brian McNamee told his story to the same congressional committee as Clemens in 2008, and, while he did not endure a rigorous cross-examination like he will in the upcoming trial, the manner and substance of his testimony seemed strong.

The real kryptonite for the Clemens defense team, though, is Andy Pettite.  Clemens and Pettite are (were?) close friends.  The defense will try to discredit McNamee as an opportunist and other nasty things, but what can they say is Pettite’s beef with Clemens?  Throughout the process, he has been a reluctant witness.  When forced to testify, he has corroborated McNamee’s claim that he injected Pettite with PEDs and — most critically — admitted that Clemens spoke about his own PED regimen.  This is a devastating double-whammy for Clemens: bolstering his chief accuser (McNamee) while delivering the coup de grace of a full confession.

The special nature of Pettite will be underscored at the trial in another way.  Clemens and Pettite shared many things over the course of their friendship, including the same attorney.  Rusty Hardin, who will represent Clemens at trial, also represented Pettite briefly in the days prior to the release of an investigative report alleging that both Clemens and Pettite used PEDs.  Government prosecutors alleged that rules of legal ethics prohibited Hardin from participating in any trial in which his former client was a key witness.  Hardin reached a compromise whereby he will not cross-examine Pettite at trial; that task will fall to another lawyer on Hardin’s team.  This move could serve to stress even more the special nature of Pettite in the trial because Hardin himself will appear to forgo confrontation of the prosecution’s key witness.

Last but not least, Clemens has made the prosecution easier with the broad scope of his absolute denials.  Perjury and obstruction of justice cases are notoriously difficult for prosecutors because good advocates can often highlight vagueness in a defendant’s responses.  Clemens did not traffic in vagueness before Congress.  He testified that he never used steroids or human growth hormone.  He testified that he never discussed PEDs with anyone.  Clemens gave absolute and definitive answers. He wasn’t being vague.

In the end, basic juror apathy may be the best hope for Clemens.  As defense lawyers tell each other all the time — and as prosecutors lament— “it only takes one.”  Criminal convictions must be unanimous, and if even one juror refuses to convict, the jury will hang, and Clemens will live to face another day in court.  The chances of persuading at least one juror are improved by the atmospherics here.  No one was killed or beaten.  Clemens is “only” accused of lying to Congress, a body that many people believe had no business conducting hearings on triflings like baseball in lieu of more pressing legislative priorities.  Some jurors might conclude that he did not obstruct a “real” law enforcement investigation and refuse to convict him on those charges.

It’s impossible to predict the result of any trial.  Even though "it only takes one," the Rocket faces a tough lineup at trial. 

Stephen A. Miller is a partner in Cozen O’Connor’s Criminal Defense and Governmental Investigations, Appellate, Commercial Litigation Group.