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Prof. McCann Breaks Down Roger Clemens Trial in Sports Illustrated

May 16, 2012

Roger Clemens may have to testify if his chief accuser hits a home run on the witness stand in the former baseball star's trial over whether he lied about using steroids and human growth hormone, Vermont Law School Professor Michael McCann wrote in his latest column in Sports Illustrated.Image of McCann

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McCann, a nationally recognized expert in sports law, antitrust, and law and economics, is director of VLS's Sports Law InstituteSports Illustrated's legal analyst, "Sports Law" columnist on (CNNSI) and an on-air legal analyst for NBA TV.

"More than four years since he and Roger Clemens gave contradictory testimony to the House Committee on Oversight and Government Reform, Brian McNamee appeared before U.S. District Judge Reggie Walton over the last two days to answer questions from government prosecutors. In doing so, he provided the most pivotal testimony yet in U.S. v. Clemens. McNamee also set the table for a contentious showdown with Clemens' lawyers as they cross-examine him late this afternoon and into tomorrow....

"If McNamee excels during cross-examination, Clemens' legal team may have no choice but to call Clemens to the stand and ask him to rebut McNamee's account. It would be a risky maneuver, since Clemens would have to also face cross-examination. His bravado and often inflexible choice of words could doom him when facing crafty questions from prosecutors. But not letting Clemens testify could also be major blunder and would be highlighted in the event he is convicted. McNamee's testimony on cross-examination, in other words, could be the trial's game changer.

"The government can still obtain a conviction of Clemens without the jury fully believing McNamee. In addition to perjury and false statement counts, Clemens is also defending against a count for obstruction of Congress. The charge refers to impeding and interfering with a Congressional investigation. It is plausible that jurors could reason that the government did not prove that Clemens knowingly lied under oath, but nonetheless showed that Clemens' interactions with the investigation were sufficiently misleading or distortive to warrant an obstruction conviction. While Clemens would face a maximum of five years in prison for such a conviction, Judge Walton could decline to impose any prison time and instead impose probation, community service and house arrest -- just like that assigned to Barry Bonds, who was likewise convicted on obstruction charges."


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