When he was young and (presumably) innocent

Apparently, federal prosecutors have nothing worthwhile to do with their time, a fact evidenced by the recent indictment of Roger Clemens. Last Thursday, a federal grand jury indicted the ex-MLB ace on a total of six counts, including two charges of federal perjury, three charges of making false statements, and one charge of — wait for it — obstruction of Congress.

The charges stem from his testimony in a February 2008 hearing before the House Committee on Oversight and Government Reform. At the hearing, Clemens and former trainer Brian McNamee provided strikingly contradictory testimonies about whether Clemens had used performance enhancing drugs, such as steroids and Human Growth Hormone (HGH). That might all have come out in a wash if it weren’t for Andy Pettitte, Clemens’s friend and longtime teammate, who provided a written statement under oath in which he claimed Clemens admitted to him that he (Clemens) had used HGH.

If convicted, Clemens faces up to five years in the big house for each count. Since thirty years is a long time, one would expect Clemens to be rather worried about this turn of events. But that might not necessarily be the case. For most people indicted by a grand jury, the indictment is simply a precursor to the inevitable “guilty” verdict. According to the U.S. Department of Justice, 94.1 percent of federal prosecutors’ cases resolved in 2009 ended with a conviction. Numerous factors contribute to this statistic, but the most relevant has to be the different standard of proof that applies in a grand jury case. In a normal criminal trial, the prosecution must prove beyond a reasonable doubt that the defendant committed the crime in order to convict. In a grand jury case, however, it only has to prove that the defendant probably (i.e. more likely than not) committed the crime.

Roger throw ball. Roger good at throw ball.

Roger throw ball. Roger good at throw ball.

One thing The Rocket has going for him, however, is that he is not most people. In a column for Sports Illustrated, legal scholar Michael McCann discusses a number of issues that could mitigate the government’s case against Clemens. Aside from his ability to bankroll a star-studded legal team, Clemens can find solace in both his own ignorance, and the proof required to convict on the charges he faces. Perjury, for instance, requires proof that a defendant knowingly lied under oath. Essentially, if Clemens can show that he did not understand the questions Congress asked him or that he truly had no idea what his former trainer was injecting into his body, he could prevail despite the markedly lower standard of proof involved in a grand jury trial. As noted by McCann, “[h]is mental state while speaking, and his awareness of what he was saying, will be key points of contention in a trial.”

If I were Clemens’ attorney, my tactic would be quite simple: plead ignorance. I would show just how little, if anything, Roger Clemens actually knows — about anything.

Below I present two examples supporting my case:

First: He confuses baseball bats for baseballs. In a game in 2000, Clemens was pitching against Mets catcher Mike Piazza. Piazza’s bat shattered when he connected with the pitch and a large chunk of the broken bat rolled toward the mound, which Clemens promptly picked up and threw at Piazza. Clemens later claimed he thought the piece of wood was a ball.

Second: He invents words a la George W. Bush. In response to a question about Andy Pettitte’s sworn statement linking Clemens to HGH, Clemens had an air-tight excuse: “I think he misremembers.”

Regardless of how this case turns out, the bottom line is we’re all sure to become dumber by association as media coverage — not to mention federal prosecutors — refuse to let this story die.

Jesse Bland

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