Why Roger Clemens Will Beat the Rap

On August 19, a Federal grand jury indicted Roger Clemens on six counts of lying to Congress and obstructing their investigation of the use of performance-enhancing drugs in baseball, to which he responded with an emphatic, "not guilty." The trial has been set for April 5.

After a summer when the pursuit of chemically-enabled milestones of admitted steroids users such as A-Rod and Andy Pettite bored most fans to tears, it will be game on this winter as we approach the career-defining case of Clemens, the last bastion of denial in baseball's Steroids Era. At stake is the possibility of 15 to 21 months in prison according to Federal sentencing guidelines, and Clemens has reportedly rejected at least one plea offer. It's an all-in bet for the seven-time Cy Young winner, who slides his freedom across the table like the last stack of chips for a chance to win the pot: the ability to preserve his legacy from the stain of proven lies. And it's a bet that may pay off.

NBC Sports' Hardball Talk blog calls it a "puncher's chance" for Clemens, but defense attorney Leonard Milligan of Boston-based Milligan Coughlin LLC goes it one better. "This is a very triable case," he recently told a radio audience on Boston's 98.5 The Sports Hub.

Unlimited financial resources can do that. We saw it in 1994, when O.J. Simpson assembled a legal Dream Team and earned an acquittal on criminal charges. Clemens now appears ready to do the same. He recently added San Diego attorney Michael Attanasio — who navigated the Padres through the Mitchell Commission investigation — to Rusty Hardin's defense. More will come, and there are plenty of holes in the prosecution's case for them to rip wide open.

Topping the list is the physical evidence. Defense attorney Milligan for one doesn't believe the used syringes and gauzes prosecution witness Brian McNamee stored in a beer can in his attic for seven years will be admissible. Issues of chain of custody and preservation of evidence render it scientifically non-credible and we haven't even wrestled with McNamee's motive, which will be made to look like a shakedown. Neither will testimony contained in the Mitchell Report be admissible since it was gathered outside of court and is considered hearsay evidence.

So how about Clemens' success late in his career, which contradicts reams of historical trends to the contrary? For admissibility, circumstantial evidence must make an inference that leads to a conclusion. After going 40-39 in his last four years in Boston, prompting then Red Sox GM Dan Duquette to declare him in the twilight of his career, Clemens signed with the Toronto Blue Jays, where he met trainer Brian McNamee, an admitted PED dispenser. He went on to win 149 games and four Cy Youngs over the next nine years — all beyond the age of 34, all after meeting McNamee, who claims to have injected him with Winstrol on multiple occasions in those early years of their relationship. Since his subsequent performance defies history — he's the oldest player to ever win baseball's top pitching honor — the inference is that it wasn't intrinsic. Milligan, however, feels this evidence is too far down the ladder of inference for any relevance and, therefore, admissibility.

Then there is the testimony of eye witnesses. Much of the defense's strategy will be in attacking the credibility of McNamee, and they've been given a lot to work with. He's an admitted drug dealer, an acknowledged liar, and in 2000 he wrote a New York Times editorial defending "bigger, faster, stronger" as the product of technological advances and work ethic rather than steroids, even as he was shooting Clemens in the butt. By the time Hardin and Attanasio get done, there will only be Andy Pettite standing in the way of Roger's acquittal. Still wondering why the two are no longer friends?

Pettite is a significant hurdle for the defense. Despite being stingy with the truth about his own PED use, he has an inherent credibility that both Clemens and McNamee lack. Even Pete Rose believes Pettite, so what more could the prosecution ask for?

There are also Clemens' own actions. The doctrine of 'consciousness of guilt' is the prosecution's best weapon in a perjury case. It allows them to introduce testimony concerning the defendant's actions after an alleged crime that proves the defendant knew he or she was guilty of something. It's what brought down former New Jersey Net Jayson Williams when he removed his bloody suit and jumped into a swimming pool after accidentally shooting his chauffeur. In Clemens' case, the prosecution will look at the defendant's retention of McNamee as his personal trainer after the latter was dismissed as Yankees strength and conditioning coach, and the 2008 telephone call he taped with McNamee. Both could demonstrate the consciousness of his guilt.

Nevertheless, the presumption of innocence Clemens enjoys as defendant, together with the probable inadmissibility of physical evidence, credibility issues of a key prosecution witness, and the questionable relevance of circumstantial evidence, will make daunting the Assistant U.S. Attorney's task of proving his guilt beyond a reasonable doubt.

Of course, that only works with a 12-person jury. Popular opinion weighs all evidence it is given, and that court has already returned its verdict. Nothing will be overturned by the success of Hardin and Attanasio, which makes you wonder why Clemens doesn't learn from Pete Rose's mistakes, cop to a plea, and ask for our unending mercy. It seems to be working for A-Rod and Pettite, and it may get both admitted into the Hall of Fame one day if the BBWAA can reconcile itself to this dark era in the sport.

As it is now, Clemens will be joining Rose as one of the game's most prolific players whose legacy is not passed with his bust in Cooperstown, but rather, by his autograph sold at memorabilia shops in Las Vegas.