NEW YORK, NY (Feb. 17) – If a perjury indictment is returned against 7-time Cy Young Award winner Roger Clemens, one noted New York criminal defense lawyer fully expects the federal government to make an example out of the superstar pitcher in a bid to deter anyone in the future from lying during a congressional hearing.
"This could turn out to be a perfect example of how the cover up is worse than the crime," said Steven Brill, a New York criminal defense attorney and partner in the New York litigation firm of Sullivan & Brill. In a February 12, 2009 article out of theAssociated Press, a retired FBI agent is quoted as saying that perjury cases involving high-profile defendants are becoming more common, telling AP: "It used to be we didn't mess with these kinds of cases. Everybody lied to us. Then, they got Martha Stewart on lying, and it became the flavor of the month."
"Even if he is found guilty of having taken performance-enhancing drugs back in 1998, 2000 and 2001," Brill said, "from what I've seen I don't expect Clemens to be charged with the underlying drug crime. But there is no question that he will suffer because of his celebrity if a perjury indictment is handed down by the grand jury.
"Congress does not like to be lied to," Brill warned. "If he is convicted of perjury, he could be facing jail time."
Brill said that if Clemens is indicted and the case goes to trial, Clemens lawyer, Rusty Hardin, will probably focus most of his energy on trying to discredit Brian McNamee, Clemens' former trainer and principal accuser, so that no credible evidence exists that could support a perjury finding against Clemens.
"If Clemens stands by his statements," Brill explained, "and McNamee is shown to be a liar, then the perjury charge cannot stand."
Looking ahead at what will probably happen to Clemens, Brill said that once a witness gives sworn testimony that contains untrue statements on a material matter in a case, there is not much more that can be done to avoid criminal prosecution.
"For this reason, we always advise our clients of the risks and consequences of testifying falsely, "Brill said. "It is human nature for some people to lie when they are under fire and their future is on the line. If we get the sense that a client is traveling down that road, we strongly advise the client not to testify at all."
According to Brill, state and federal perjury charges are infrequent because it is hard to prove that an individual willfully lied about a material matter.
"In a perjury case," he explained, "the government must present evidence that proves not only that the defendant testified falsely, but that he or she willfully made a statement which the defendant did not believe to be true and that the matter about which the defendant is testifying falsely is a material matter in the case.
"Clemens lying about his address or the names of his kids wouldn't count," Brill said.