Sports In the Courts Blog : New York Attorneys & Lawyers Specializing in Sports Law & Legal Analysis

Finally, after about a week of jury selection, a jury has been chosen to serve in the case of the United States of America v. Roger Clemens. According to the court, opening statements are to begin today.

Opening statements, unlike closing arguments, are not supposed to be about fireworks. An opening statement is designed to be a calmly delivered road map of the evidence an attorney expects the jury to hear.

Opening statements rarely win cases but they can lost them. If a lawyer tells a jury about the evidence that he expects them to hear and it doesn't happen, disaster can strike. Juries often punish lawyers (and their clients) who don't keep their promises and don't deliver the goods.

So when you open, be careful that you don't over-promise and that your word is good.

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Amidst reports that he participated in illegal high stakes poker games in a Beverly Hills hotel with other celebrities, Alex Rodriguez has refused to comment. His spokesman Richard Rubenstein, however, denied that Rodriguez played poker with Tobey Maguire, Leonardo DiCaprio, Ben Affleck and Matt Damon in a game that cost $40,000 to enter. 

The alleged poker games were brought to light after Tobey Maguire was sued by a trustee attempting to recover money lost in a Ponzi scheme, and the circumstances surrounding the poker games were revealed therein. There are apparently several sources confirming that Rodriguez plays a lot of poker, including poker player Adam Bilzerian, who told The Star that Rodriguez is a "good poker player," and he won a "bunch of money" at a game at a private home a year and a half ago.  

In 2005, Rodriguez was playing poker at New York clubs, and it was reported that Commissioner Bud Selig was not happy with Rodriguez, although no action was taken. 

It is very unlikely that anything will happen to Rodriguez from a legal perspective, although Major League Baseball will investigate these allegations, as it takes gambling very seriously. Still, if the allegations are true, Rodriguez is again showing poor judgment, as there are plenty of places to play poker legally. This will not help his image, already tarnished from lying about his steroid use, which he only admitted to after reporter Selena Roberts uncovered that Rodriguez tested positive for steroids in 2003. 

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Dwight Gooden, who at one time was one of the most promising young pitchers in baseball history, was sentenced to 5 years probation in Bergen County NJ Superior Court on a child endangerment charge. Gooden, who before the incident seemed to have put his past troubles behind him and even opened a baseball academy, was arrested in March of 2010 following a motor vehicle accident. Gooden was allegedly under the influence of cocaine at the time of the accident, and had his 5 year old child in the car, who was not wearing a seatbelt. Fortunately, nobody was injured. 

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One thing that is a certainty about the Barry Bonds trial is that his former trainer and alleged steroids supplier, Greg Anderson, will not testify against the slugger. He and his “Fifth Amendment” rights will be in jail as he has refused to take the stand.

Bonds allegedly testified before a grand jury that he thought he was being given flax seed oil by Anderson (in the Cream and Clear) but he never knew they were steroids.

What the collective former players cannot say is that they ever saw Bonds take steroids. Nor can they give testimony that they knew Anderson was providing steroids to Bonds. The evidence provided by these former players is nothing more than classic “guilt by association.”

Whether a mountain of guilt by association evidence can equal Bonds’ guilt beyond a reasonable doubt remains an open question.

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In the latest round of court filings, former Red Sox and Yankees Roger Clemens (through his attorneys) protested to the judge that the prosecution had thrown the “kitchen sink” of charges against him. As a former prosecutor, I can say he may have a legitimate grip but that’s the way the criminal process works.

As a prosecutor, you want to indict (or charge) a criminal defendant with as many charges as possible (and that can survive a motion to dismiss). For example, if you have a homicide case that involved a robbery, you would charge murder, felony murder, manslaughter, robbery, grand larceny (if appropriate) and criminal possession of a weapon.

For the prosecution the use of “overcharging” provides useful factors. Remember the prosecution has the burden of proof against a criminal defendant, like Clemens. A multitude of charges will allow a prosecutor to control two important options. First, if a trial or prosecution is going badly, the more serious charges can be dismissed and a plea bargain can be offered to lesser charges. The second is one of simple odds, the more charges submitted to a jury to determine, the higher the chance that they will return a verdict of guilty.

Those are the reasons why the Rocket got the kitchen sink.

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Federal Judge Reggie Walton has ordered that he will hear oral argument on February 2, 2011 on whether Rusty Hardin, the Rocket's lawyer, should be disqualified from representing Clemens at trial. The government contends that, on prior occasions, Hardin has spoken privatively with Yankee pitcher, Andy Pettitte.

The problem is that Pettitte is the star government witness against his old buddy Clemens. Pettitte can testify that Clemens lied to Congress when he denied using steroids since Pettitte already knew Clemens was a cheater.

If Pettitte is a prime government witness at a trial then Hardin would cross-examine him. However, Judge Walton may stop that from happening. If the court finds that Hardin formed an attorney-client relationship with Pettitte then Hardin has a conflict of interest in this case.

If Clemens' lawyer has a conflict, strike three, he's out.

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Due to the "voluminous" evidence that has been produced in the Roger Clemens investigation, a judge has pushed back the trial to July.

Prosecutors have produced over 54,000 pages of evidence.  The prosecution is required to provide Clemens' attorney Rusty Hardin with all documents for review prior to trial.  Hardin said he needed additional time to review the documents and retain experts to examine the scientific portion of the findings.  Hardin also said he is having difficulty obtaining materials from MLB investigator George Mitchell and the congressional panel.  Attorney-client privilege issues are preventing the production of the documents to Hardin.  Hardin will request a subpoena for the materials.

The Clemens trial was scheduled to begin in April, and has now been pushed back to July.  Hardin originally requested the trial be delayed until September, but prosecutor Steve Durham asked for it to only be put off until June.  Judge Walton told Clemens' legal team jury selection will start on July 6th.  

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As expected, Jim Leyritz was not sentenced to any additional jail time today, and instead wasgiven one year of probation and a $500 fine. The prosecutor had asked the Judge to send Leyritz to jail for four (4) months, but the defense responded that it was Leyritz’s first offense. The Judge did inform Leyritz that if he violated the conditions of probation, he would give Leyritz the maximum jail sentence. Leyritz also must complete 50 hours of community service.

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Now that the trial has concluded, we know what the main issues were - whether Leyritz ran a red light or otherwise contributed to the death of the victim, Ms. Veitch, and whether he was operating a motor vehicle under the influence of alcohol. Attorneys know that jurors do not always follow the instructions of law given to them by the Judge, and consequently, we are always intrigued by what jurors think of the witnesses and evidence presented and how jurors make their decisions – this is the most important consideration when preparing our cases for trial.

It was interesting to read what some of the jurors had to say after the trial It now appears that the jurors were never deadlocked on the DUI manslaughter charge; rather, they could not agree on whether Leyritz was driving under the influence. As reported by CNN, Jury foreman Brian Haul stated that, while all six jurors agreed Leyritz was not guilty of DUI manslaughter, they felt compelled to hold him responsible on some grounds. "Are we going to go in front the public and say it's OK to have four or five drinks within an hour or so period of time and then hit the road? I think that was the deciding factor."

Not that we disagree with Haul’s reasoning, but if the jurors believed the evidence that Leyritz’s blood alcohol content was .08 or higher, they had no choice but to convict Leyritz in accordance with the jury instruction. If they did not believe that the blood test was accurate, the jurors would have to acquit Leyritz of the DUI charge. Although evidence that Leyritz’s “normal faculties were impaired” is enough for a conviction under the statute, the Judge found as a matter of law that there was insufficient evidence of impairment, and dismissed that part of the case.

Another juror wanted to acquit Leyritz of the lesser DUI charge, but changed her mind to avoid a hung jury (even though the jurors could have acquitted Leyritz of DUI manslaughter regardless of the deadlock on the DUI charge). Again, we have a juror that voted to convict Leyritz, even though she felt there was not enough evidence to do so.

In the end, Leyritz dodges a bullet, and faces minimal penalties, compared to what he was facing with the DUI manslaughter charge. 

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In his opening statement, Leyritz's attorney told the jury that he would call a toxicology expert to testify that the blood test taken after the accident was not reliable, since – according to the defense -- the concussion Leyritz sustained in the accident could have affected the body's ability to process alcohol. The defense also promised to show that the victim, Ms. Veitch, was speeding, ran a red light, and may not have had her headlights turned on. The prosecution's accident reconstructionist already testified that Leyritz was not speeding at the time of the accident and concluded that Ms. Veitch's vehicle was traveling between 33 and 40 MPH (the speed limit is 35 MPH). Leyritz's expert, however, Kenneth Bynum, has Ms. Veitch traveling up to 51 MPH, leaving it for the jury to determine which expert is more credible.

The prosecution's reconstructionist further testified that his investigation did not turn up evidence of "hot shock," a term used to describe whether a car’s bulb, such as a headlight, was lit at the time of collision. Having dealt with this issue in some of my cases, I can tell you that the absence of hot shock alone is not enough to conclude that a light was not turned on and functioning properly. Although incandescent bulbs contain filaments which illuminate when they become energized – creating the hot shock phenomenon mentioned above -- most headlights use halogen bulbs that contain stronger filaments that require a greater force to distort. Thus, the absence of hot shock does not necessarily mean that Ms. Veitch's headlights were not activated at the time of the accident. Furthermore, if the bulb was located more than a few feet from the area of impact it is also unlikely to show evidence of hot shock.

And what of Leyritz’s blood alcohol level? Defense witness Dr. Mazyar Rouhani testified that he prescribed Leyritz medication to treat a concussion two days after the accident during which, Leyritz claimed, his head struck his car’s windsheild. Leyritz’s toxicology expert is expected to testify that a concussion causes the stomach to stop emptying into the intestines which would keep the alcohol with the heavy meal Leyritz had eaten earlier, rather than entering his system.

The defense is trying to create reasonable doubt, both as to whether Leyritz was intoxicated, and whether he caused or contributed to the collision. The defense must succeed on one of the two.  

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I previously wrote that it was surprising that the Prosecutor did not impeach the testimony of Jim Leyritz’s passenger, Paul Barger, who stated that Leyritz did not drive through a red light, since Barger had previously told police that Leyritz did run a red light.

Apparently realizing her mistake, the Prosecutor recalled Barger yesterday to confront him with his statement -- given on January 23, 2008 -- in which he never mentioned a yellow light. Although I have not read a transcript of Barger’s testimony, news reporters attending the trial have stated that Barger somewhat recanted on his trial testimony and now claims that the light was yellow when Leyritz entered the intersection and turned red while Leyritz was driving through the intersection. Barger’s modification of his prior testimony would seem to weaken his credibility. The Prosecutor should have immediately reminded Barger of his previous statement and asked him if his memory was better in January of 2008 when he first testified.

Judge Gold also precluded the Prosecutor from introducing evidence concerning a second blood test which was taken an hour after the first. Florida law permits one blood test of a suspect in a fatal motor vehicle accident even if the suspect (Leyritz) does not consent. The second test, however, was illegal, and the jury will not know about it. Nevertheless, the first blood test showed Leyritz’s blood alcohol content to be .14, well over the State’s limit of .08. This is not a setback for the prosecution as is being reported by many in the media.

The defense appears to be doing a decent job of casting doubt on the Prosecutor’s opening statement in which she claims that the State would prove that Leyritz ran a red light. However, the jury may determine that Leyritz could have avoided the accident. Barger’s testimony that Leyritz was looking down, and not at the road when the light turned yellow, is evidence that Leyritz was not making reasonable observations of his surroundings as the operator of a motor vehicle, which would be enough for a conviction. 

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As I had previously posted, the trial judge excluded any evidence that the victim, Ms. Veitch, had been drinking that evening. However, on Wednesday, Leyritz's attorney repeatedly asked Kevin Lane, a friend of Ms. Veitch, questions about how much Ms. Veitch had to drink. The Prosecutor (who was admitted to practice almost 20 years ago) apparently failed to object to these questions, angering Judge Gold, who nevertheless allowed the case to proceed, rather than declare a mistrial. However, the damage may have been done, as the jury has now heard that Ms. Veitch had plenty to drink that night, which is not relevant to the determination as to whether Leyritz is guilty of manslaughter.

Later in the day, Bruce Barger, a front seat passenger in Leyritz's car at the time of the accident, surprisingly testified that Leyritz did not drive through a red light, but rather the light turned yellow when Leyritz was 10 feet from the "stop bar". Prior to the trial, it had been reported that Mr. Barger was going to testify that Leyritz ran the red light, because that it what he told police. The Prosecutor surprisingly did not cross examine Mr. Barger on his differing testimony. Mr. Barger added that Leyritz was not looking at the road when the light turned yellow, and instead was looking down, such that Mr. Barger had to alert Leyritz that the light turned yellow. Of course, if this testimony is accurate, it casts doubt upon whether Ms. Veitch had a green light - her light could not have turned green until after Leyritz' light turned red.

On Thursday, there was conflicting testimony among officers and the nurse that drew Leyritz's blood, as to whether Leyritz was exhibiting signs of intoxication. This could seemingly create reasonable doubt as to whether Leyritz was intoxicated, except that Leyritz was given a blood test, which is very difficult to challenge and much more reliable than a breathalyzer test. It appears that Leyritz failed the field sobriety test, and that alone would give the police probable cause to test Leyritz's blood alcohol level. Thus, the defense's best strategy should be to sieze on the differing accounts as to whether Leyritz drove through a red light, as the Prosecution must prove that Leyritz's actions caused or contributed to Ms. Veitch's death.

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Yesterday, former Red Sox and Yankee star pitcher entered a plea of not guilty to federal perjury and obstruction of Congress charges. This story was widely reported but little was mentioned about what happens with Clemens' case between now and the April 5, 2011 trial date.

Well, it may not be front page news but the defense now gets to conduct document discovery from the prosecution. Until this moment, the defense likely possessed very few official reports held by the government, but this is about to radically change.

Clemens' defensive team is basically entitled to a copy of the prosecutor's file. This means the defense will now have access to investigative reports, police reports, witness statements, and grand jury testimony. This information is critical for the defense lawyers to develop their plan of attack against the government's case. However, these documents should also go a long way in showing how strong the prosecution's case against the Rocket may be.

We know Clemens has turned down a plea bargain that didn't carry jail time. After Roger reviews the "care package" he is about to get from the Feds, I wonder if he will have any second thoughts. 

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With all the fast and furious news about former Red Sox, Astro, Blue Jay and Yankee star pitcher Roger Clemens being indicted on perjury charges, we wanted to take a moment to calm down and reflect. Once again, let's repeat that Clemens has been found guilty of nothing and maintains his innocence of all of the federal felony charges against him. But, upon some thinking, we wonder if he knows that the count against him is 0 and 2. Let's go to the instant legal replay.

Strike One: Clemens, under no obligation (and no subpoena) chose to testify in front of Congress where he story fell apart after his former trainer, Brian McNamee swore that no only did he inject Clemens with steroids, he even kept the needles. Making it worse for Clemens, two-time Astro and Yankee pitcher Andy Pettite (another admitted PED user) confirmed McNamee's account and also said Clemens admitted to him that he used PED's.

Strike Two: Clemens sues McNamee for defamination. The Rocket's case quickly backfires when a judge decided that it had no merit and was dismissed faster then you can say "no Hall of Fame."

And the Wind-Up: Clemens, throwing caution to the wind, calls a Boston radio station to give an interview (besides his tweets) and says that he will have "his day" in court. That is Clemens' right but their is a chance he will lose. Given, Clemens recent history in legal proceedings and the proof the government may have, a called Strike Three could mean that he will be the best player on the federal prison's softball team (for at leat 15 to 21 months).  

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Well, its been less then a day since former New York Yankee and Boston Red Sox star pitcher, Roger Clemens, was indicted on 15 different counts of perjury, obstructing the Congress of the United States and interfering with a Congressional investigation and already Clemens' defense team is putting out a lot of questionable information (an some usual nonsense). So let's do a little legal housekeeping.

First, although every criminal defense attorney says it (and the Clemens team is no exception), an indictment is not "meaningless" and not "proof of nothing." A felony indictment is proof that a grand jury found "reasonable cause" to believe that a crime was committed and Clemens is the one who did it. While this is not the "proof beyond a reasonable doubt" needed for a conviction, it is all the proof required to bring Clemens to trial. An indictment is not "meaningless" because it becomes the "charging instrument" to which Clemens must enter a plea of guilty or not guilty.

Second, Clemens' lawyers are suggesting that this prosecution is on something of a "witch hunt" or saga against their client. Whether Clemens is guilty or not will not be decided for a long time, but make no mistake, the Democratic AND Republican Congressman who heard Clemens' testimony and his former trainer, Brian McNamee's testimony believed Clemens had lied. In a era when the political parties can't agree on the day of the week, the Congressional request for the US Attorney to investigate Clemens for perjury came for BOTH parties.

Lastly, Clemens is tweeting about his innocence. In my opinion, this is beyond reckless and shows that Clemens is out of control. The government is collecting everything he is writing and will try to use any mistake he may make against him.

Roger, this is what you have lawyers for, stop tweeting, facebooking and talking and start getting ready for the fight of your life.  

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Earlier this afternoon a grand jury returned an indictment against Roger Clemens for lying to Congress during his disastrous testimony. It appears that Clemens may face 15 to 21 months and additional fines if convicted. We expect Clemens through his lawyers will enter a plea of not guilty to the charges.

During his testimony before Congress, Clemens seemed like an out of control client who didn't or wouldn't listen to his lawyers. Unfortunately for Clemens, his former trainer (Brian McNamee) told a more believable story and brought some physical evidence to show Clemens' steroid use.

Maybe he will listen now and find a way not to misremember the truth. We will have much more on this case and we will follow it closely.

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Brian McNamee testified for over 2 1/2 hours today in front of a Grand Jury.  The investigation to decide whether Roger Clemens will face charges for perjury is coming to an end.  Star witness BrianMcNamee's testimony could mean that prosecutor's may be seeking perjury charges against Clemens in the coming days.

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Courtesy of MSG Game On 

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 Courtesy of MSG Game On

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