Testimony Got Him Here: Should Roger Clemens Testify in His Criminal Trial?

Today, at a defense table in the United States District Court for the District of Columbia, sits the former Major League Baseball pitcher who won more Cy Young Awards than any other pitcher in the history of Major League Baseball.

Roger Clemens is currently on trial for six felony counts, including:  Obstruction of Congress, False Statements and Perjury.  The charges stem from Clemens’ participation in a deposition and a hearing before the United States House Committee on Oversight and Government Reform, who was at that time, investigating the use of Performance Enhancing Drugs (“PEDs”)by players in Major League Baseball.  This investigation was largely prompted by the Mitchell Report.

The Mitchell Report is a 409-page report prepared after the completion of a 21-month investigation taken on by former United States Senator George Mitchell.  It was commissioned by Major League Baseball, as Commissioner Bud Selig appointed George Mitchell to investigate the use of PEDs by Major League Baseball players.  In total, the Mitchell Report named 89 then-current and former Major League Baseball players as individuals who had taken PEDs.  Included in this list was Roger Clemens.

Throughout the time period after the publication of the Mitchell Report, Clemens has maintained he never took either steroids or Human Growth Hormone (“HGH”).  Five days after the publication of the Mitchell Report, Clemens’ agent, Randy Hendricks, issued a statement on behalf of his client indicating that he has never taken “. . . steroids, [HGH] or any other banned substances at any time in [his] baseball career or. . . life.”

Subsequently, Clemens appeared in a deposition and hearing before Congress, voluntarily, and reasserted his position that he never took steroids or HGH under oath.

The Prosecution’s case against Clemens appears to be largely based upon testimony from McNamee, as well as testimony from Clemens’ former teammate and friend, Andy Pettitte.  According to reports, McNamee will testify that he injected Clemens with steroids and HGH.  Reports also indicate that McNamee provided the government with gauze and syringes with Clemens’ DNA and remnants of PEDs on them.  Additionally, Pettitte will testify that Clemens told him he took HGH.

It appears that the Defense team has laid out a road map early to deal with both McNamee and Pettitte’s testimony, as well as the physical evidence apparently provided by McNamee.  The tactic against McNamee largely involves a blackmail theory which was laid out by Clemens’ attorney, Rusty Hardin, during a pre-trial hearing.  It appears that the defense will argue that McNamee, who was concerned with a rape investigation, feared that he would be terminated from his post as a strength and conditioning coach with the New York Yankees.  According to the Defense’s theory, this fear led McNamee to take the syringes and gauze pads he had with Clemens’ DNA on them, and contaminate them with PEDs.  As for Pettitte, it appears that the Defense will attempt to develop testimony demonstrating that Pettitte misheard what Clemens told him, and as such, never heard Clemens tell him that he took HGH.

Should Roger Clemens Testify?

Given what appears to be the strongest evidence against him in his criminal trial, as well as his Defense counsel’s strategy to counter it, the question remains, should Roger Clemens testify?

The Fifth Amendment to the United States Constitution provides in relevant part, “No person shall. . . be compelled in any criminal case to be a witness against himself.”  Thus, in a criminal case, a defendant does not have to take the witness stand to testify.

Ultimately, the decision whether or not to testify is the defendant’s alone.  However, his legal counsel can advise him as to what deciding to testify would entail, and likewise, what the ramifications of not testifying could be.

In advising a defendant facing criminal felony charges, I believe that after explaining the right granted to him under the Fifth Amendment, that Defense counsel should then explain the Prosecution’s burden of proof in a criminal trial.  In a criminal trial, the Prosecution bears the burden of proving every fact necessary to constitute the crime which the Defendant is charged beyond a reasonable doubt.  (In re Winship, 397 U.S. 358 (1970)).  Thus, if any reasonable doubt exists in the jury’s mind as to whether an element of the crime was proven, it must acquit the defendant.

Given the burden of proof in a criminal trial, in my opinion, Clemens’ decision to testify should come after the Prosecution has presented its case.  It is likely that the strategy which his Defense counsel indicated it would pursue during a pre-trial hearing could present enough reasonable doubt so that the Prosecution does not meet its burden of proof required under In re Winship.  If through cross examination the Defense is able to fully dissect the credibility of McNamee and establish that Pettitte did not hear from Clemens that he took HGH, then arguably, enough reasonable doubt exists for the jury to find for Clemens and acquit him of the charges.

However, if upon the close of cross-examination of McNamee and Pettitte by the Defense, it does not appear that McNamee’s credibility has been challenged effectively enough, or Pettitte remains steadfast in his belief that he heard Clemens tell him he took HGH, Clemens should consider testifying.  I believe that the greatest thing Clemens has going for him in this case is that he has maintained since the publication of the Mitchell Report that he has never taken PEDs.  If reasonable doubt is not thoroughly enough established at the close of the Prosecution’s case, it may be necessary for Clemens to take the stand to say once again what he did to bring him to these charges:  that he never took steroids or HGH.

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