Why Roger Clemens, Even if Innocent, Should Take the 5th

Full disclosure: I'm a big Roger Clemens fan. I loved watching the Rocket pitch for Boston, and even when he was pitching for the Yankees, a part of me was rooting for him -- as long as he wasn't pitching against the Red Sox. I don't know whether or not Clemens took any banned substances. I watched him on 60 Minutes, and if I were a juror, I would have acquitted him.

So let's assume, for purposes of this blog, that he never in his life took a banned substance. He is now been subpoenaed to testify in front of a judicial committee. Were I his lawyer, I would insist that he invoke the privilege against self-incrimination if asked about unlawful steroid use.

Why should he possibly take the 5th, if he's innocent? Is he even allowed to take the 5th if he's totally innocent? These are good questions, but as a lawyer with 45 years of experience in these matters, I would advise him that there is a very good reason for taking the 5th and that he would be entirely within his rights to do so.

The 5th Amendment is not designed to protect only the guilty. It prohibits the government from compelling anyone to "incriminate" himself. Innocent people can incriminate themselves, and sometimes do.

Consider the context in which Clemens would be asked to respond to questions about steroid use. A report submitted by a former majority leader of the Senate, George Mitchell -- who I am also a big fan of, and admire enormously -- has concluded that Clemens took steroids. His trainer has said that he has taken steroids, and will presumably so testify, if he has not already done so. Who is Congress going to believe: the former majority leader of the Senate, and one of the most respected former members, or a baseball player who continues to win in his mid 40s? By testifying, Clemens will be walking into a perjury trap. He will be buying a potential indictment in which his liberty will be exposed to the whims of a jury.

Accordingly, he should continue to assert his innocence, but refuse to do so under oath. Will the public accept this? Civil libertarians, and those who understand how the criminal justice system works, will understand why an innocent man should sometimes take the 5th. Others may not, but the 5th Amendment is designed to protect against incrimination, not public opprobrium.

Here's the wrinkle. The one thing the 5th Amendment does not protect against is perjury. If Clemens were to be given immunity and then be forced to testify, and persist in his denial of steroid use, he could be prosecuted for perjury, despite the grant of immunity. But Congress may not choose to grant him immunity, and even if it does, a creative argument could be made that immunity should not be used to trap somebody into committing perjury.

In the end, Clemens will probably choose to testify because he is deeply concerned about his legacy. I understand that but I respectfully disagree. This is one fan who he will not lose even if he takes the 5th.

Comments

[kornix]

Yep, should take the 5th, assuming he's innocent, because nothing like a "I did not use steroids" for damnable, incriminating, absolutely certain evidence that Clemens, in fact, DID use steroids. Is that a trap or what?

It's sound logic like this that points out the need to finish turning the world over to lawyers. Best way to get at the truth of things. Think the sun's going rise in the east tomorrow morning? Wrong. That's a rush to judgement, so definitely ain't happening.

Did you have ham and eggs this morning. Well, DID you? If you did, you definitely didn't because that would mean that, if you tried to remember what you had for breakfast, you would strongly SUSPECT it was ham and eggs. Prior to that ham and eggs being CONVICTED of being ate by you this morning. ANOTHER rush to judgement.

Just think, if the world had been run by lawyers from the beginning, it wouldn't have taken until just the last few hundred years to find out that the world was round.

[SmootyBooty]

One loser defending aother...

[ProFromOre]

I was an Athletic Trainer for 14 years, spending some time in both professional baseball & professional football. I saw the results of steroid abuse at both the college level and in the pro's.

I watched Roger's 60 Minutes interview and believe him. He just didn't know enough about steroids or their effect to be a user - whomever talked to him about the effects of steroids did one hell of a scare job on him.

I, and every Athletic Trainer I have met in my life, are strenuously opposed to steroids, but Roger's concept of their effect was almost funny in it's inaccuracy.

My guess is that someone threatened this strength coach, (I won't honor this guy by referring to him as a trainer, even with a small-t.), with prosecution. He got the squeeze from someone in law enforcement and was offered immunity if he talked. And just like torture, you don't always get the truth when you're done.

[YogiBarrister]

Clemens isn't going to testify before Congress. The whole point of his defamation suit against McNamee is so that he won't have to. BTW watch Clemens eyes when he answers the question if he took steroids. Right handed people roll their eyes up and to their left when they are searching their memories, and up and to the right when they are searching their imagination. Mr Dershowitz also believes wholeheartedly in O.J. Simpson's innocence. Enough said. He does give good advice though. Clemens should not committ perjury by answering any questions, look what just happened to Marion Jones.

[We]

From a PR perspective, taking the 5th would stink only slightly less badly than actually being convicted. Good-bye to a post-baseball career as an on air personality for example. Cut the crap. Be a man. Tell the truth.

[Synoia]

Hmmm...How about telling the truth, instead of trying to wiggle of out the moral responsibility he has as a sports icon?

"a god who doth stride the narrow world like a Colossus". Right?

[wldnswmmr]

"Here's the wrinkle. The one thing the 5th Amendment does not protect against is perjury. If Clemens were to be given immunity and then be forced to testify, and persist in his denial of steroid use, he could be prosecuted for perjury, despite the grant of immunity. But Congress may not choose to grant him immunity, and even if it does, a creative argument could be made that immunity should not be used to trap somebody into committing perjury."

Admittedly, I went to a law school other than Harvard, but this seems off the mark, counselor. I wasn't aware that one could commit perjury by refusing to testify, and the 5th Amendment doesn't protect against a lot of things. However, if you don't testify at all by taking the 5th, it's a safe bet you won't commit perjury. As for using immunity to "trap" someone into committing perjury, how would one go about proving that immunity was granted for that purpose? Wouldn't the committee simply respond they granted immunity so they could get at the testimony because the testimony was more important than whatever substantive crime might be revealed by testifying? That would have to be a creative argument indeed.

[mcthfg]

It's always about an angle, huh Alan? Morality is a moving target for you. Doesn't really matter if he broke the rules, as long as he can get away with it.

Baseball players take drugs, and have ever since money was involved. Before steroids it was uppers.

It would figure that you're a big fan of a game that has always used drugs for an unfair advantage, and even more telling that you're rooting the hardest for a guy who seems to be the biggest jerk out there.

[SamanthaJaneSalem]

Taking the 5th could cost Roger Clemens the Hall of Fame, like it appears to be costing Mark McGwire.

The Mitchell Report should have never been released-- and probably not initiated either. You can't publish a list based on what two guys said only to smear the names of the players those guys knew. That's why so many Mets and Yankees were named.

It's one of those instances where there is a greater justice in lying because the question is framed in a tainted or corrupt context. If Clemens did use steroids, his name should have still never appeared. It singles out certain players and let's others go free-- justice?

We also know Clemens was a great pitcher without steroids. 1999, 2000, 2003-2006-- years late in his career when he was not accused of using steroids. We don't know if he had an injury to overcome, or exactly what the circumstances were when, almost a decade ago, when there was no testing for steroids.

Clemens was a great teammate who pitched on three days rest multiple times in the playoffs for Houston, who encouraged young pitchers and worked hard all the time. Steroids would not have helped him develop the splitter which allowed his career to continue into his 40s.

Baseball is destroying itself by bringing down its biggest record-holders in Clemens and Bonds. They should be protecting their names while, at the same time, implementing tougher testing policies.

[KPinSEA]

Eh, perception is everything I guess, because I watched him on 60 Minutes and saw a guy who looked at the floor and licked his lips every time he lied in response to a tough question, which was frequently, and looked the questioner in the eye only when delivering a rehearsed diatribe, which was also fairly common.

Of course being a responsible juror I would try to vote based on the evidence, not the acting abilities of the witness .... but nobody pays a criminal attorney of Mr. Dershowitz's abilities to fabricate evidence, so what else is left to fabricate but demeanor?