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Fastballs Coming: Clemens Trial to Start This Week

We have heard enough about the FCPA, compliance and other mundane topics.  It is time to switch gears to this summer’s hot topic — no, it is not the Nationals (although they are a fun team to watch at a great stadium) — the Roger Clemens criminal trial on six counts of lying to Congress, perjury, and obstruction of justice.

I am not going to recount the evidence since I am assuming readers are already familiar with much of the case.  The evidence boils down to a cooperating witness, Brian McNamee, Andy Pettite, corroborating physical evidence and a few corroborating witnesses.  Everyone already knows what the defense is going to be — McNamee is a liar and Pettite is mistaken.

My perspective is a little different.  I was a federal prosecutor in the District of Columbia, am very familiar with the judge, local practices and most importantly, the jury pool.  Steve Durham, the lead prosecutor, is an excellent prosecutor and I have known him for years.  (Ironically, his nickname is “Bull” in honor of the best baseball movie ever made — Bull Durham).

From the DC perspective, there are a number of trial tactics and issues.

First, jurors will have to be convinced that what Clemens allegedly did was a serious crime.  Sure, he may have lied to Congress but why did he do so and so what?  How did his actions harm the public?  Jurors in DC are used to hearing about drugs, violence, major corruption scandals involving large amounts of money — what is so sexy about lying to Congress.  On the other hand, DC juries understand the significance of a “big” case, the press attention and the importance of such big cases.

Second, everyone assumes that Clemens’ attorney, Rusty Hardin, will dominate the trial and curry favor with the jury.  After all, that is why Clemens hired him.  Rusty will need to be careful.  DC juries do not like flashy lawyers from outside DC.  Of course, they love homegrown popular defense lawyers (e.g. Ken Mundy who represented former Mayor Marion Barry).  Also, DC juries respect competent, non-flashy attorneys.  In the Scooter Libby trial, the jury had little admiration for Ted Wells, who was flashy but not very competent, while they respected William Jeffress, a highly-respected competent lawyer who is not a flashy performer.

Third, Judge Walton will give the parties a fair trial.  He is highly respected, known for being a tough sentencing judge but will make sure the defendant gets a fair trial.  If convicted, Judge Walton will hit a long ball and impose a severe sentence on Clemens.

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