Media & Entertainment Law

New Sports Illustrated Column on Roger Clemens Arraignment

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

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In the months ahead, Clemens' legal team will also consider whether to accept a trial by jury, as is Clemens' right under the Sixth Amendment, or to request a bench trial, which would leave the question of Clemens' guilt or innocence to Walton. Clemens is likely to accept a jury trial, as he could avoid a conviction if just one of 12 jurors does not find guilt beyond a reasonable doubt. That very scenario played out in the trial of former Illinois governor Rod Blagojevich, who earlier this month avoided conviction on 23 of 24 counts of lying to the FBI because one of 12 jurors dissented. On the other hand, if Clemens' legal team believes that jurors are likely going to regard Clemens with the same disfavor expressed by many Americans, a bench trial may become a more viable option.

Another key consideration for Clemens' legal team will be whether the former pitcher testifies in the trial. Clemens is not required to testify, and should he decline, the jury will be instructed to not infer guilt from Clemens' choice. There are practical consequences, however, to a defendant not testifying. If Clemens' case boils down to dismissing various prosecution witnesses as liars or persons with flawed memories, a jury may want to see Clemens himself take the stand, look people in the eye and capably respond to questions raised in cross-examination. Clemens' lawyers, however, may not be comfortable with their client answering carefully-crafted questions asked by seasoned and talented prosecutors. After all, federal prosecutors do not enjoy a conviction rate of approximately 90 percent by accident; they are often among the best trial lawyers around. Clemens cannot testify unless he is willing to face prosecutors' questions.

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Still, a number of attorneys remain perplexed by the logic of Clemens to seek a public Congressional hearing to repudiate allegations found in the Mitchell Report and then to testify without obtaining immunity, which would have precluded the charges he now faces. According to the attorney mentioned above, "The decision to have Clemens actually ask to testify before Congress, and then to testify without immunity, was idiotic. No good lawyer would have agreed to that without first obtaining immunity for the witness. That kind of decision-making doesn't bode well for Clemens in this trial. Even if Clemens insisted on testifying, a lawyer is useless if he or she only goes along with the client's wishes."

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Full post as published by Sports Law Blog on August 30, 2010 (boomark / email).