Roger Clemens on trial – should he testify?

Baseball star Roger Clemens is scheduled to face a federal perjury trial beginning Wednesday. At stake are Mr. Clemens’s freedom – he could receive a lengthy jail sentence if convicted – and possibly his personal reputation and place in baseball history. Should he take the stand in his own defense?

After all, in his pitching days “The Rocket” was not the sort of player to back down from a confrontation. Challenge him, and he’d challenge you right back, usually by throwing a rock-hard baseball at 90-plus miles per hour in the vicinity of your chin.

Well, that’s fine on the diamond, but in the courtroom Clemens would probably just get himself in trouble, according to legal experts. He does not have to testify, and he shouldn’t. If he’d kept his mouth shut he might have avoided his courtroom appearance in the first place.

“Although Clemens would probably like to testify, he probably won’t,” noted University of Vermont law professor and veteran sports attorney Michael McCann in a Sports Illustrated analysis of the upcoming trial.

Clemens is being charged with perjury, making false statements, and obstruction of Congress for telling a House committee under oath that he never used steroids or other performance-enhancing drugs (PEDs) during his 23-year Major League Baseball career.

The evidence against Clemens is substantial. He was named as a possible steroid user in the Mitchell Report on PEDs in December 2007. His former trainer Brian McNamee says he injected Clemens with PEDs over a dozen times, and retained syringes as proof. Former teammate Andy Pettitte testified that Clemens confided in him he had used such substances.

But perjury cases are difficult to prosecute. The Justice Department lawyers must prove not only that Clemens lied, but that he intended to lie when he made his statements before Congress.

In response the defense team can attack the credibility of Mr. McNamee and other accusers, and/or say that Clemens misunderstood the inquiries, or was narrowly correct in his answers. They do not have to prove that he did not take PEDs. They must only throw enough doubt on the prosecution case to convince a jury that reasonable doubt exists as to the true situation.

That effort may have been aided Tuesday when presiding judge Reggie Walton said he probably would not allow Pettitte and other former Clemens teammates to testify that they themselves had received illegal PEDs from trainer McNamee.

“This will be a tough case for Clemens. Remember though – it only takes one juror to side with Clemens for him to walk,” writes legal analyst Eric Macramalla on his “Offside” sports law blog.

But even before prosecution and defense lawyers begin opening statements, has Clemens lost the most valuable thing he could lose?

By that we mean his reputation, of course. When he hung up his spikes in 2007, his position in sports history seemed secure. He was not just a lock Hall of Fame selection. He was, quite possibly, one of the two or three greatest pitchers of all time.

Now he seems destined to be placed in a more dubious category of baseball greats: those, such as Barry Bonds and Mark McGuire, who have failed to win admittance to the Hall of Fame due to questions over their PED use.

The federal trial is expected to take four to six weeks. The six charges Clemens faces carry a maximum sentence of up to 30 years in prison and a $1.5 million fine. If convicted, he likely would be sentenced to only a relatively short prison term, as he would be first-time offender.