New Sports Illustrated Column on Roger Clemens Arraignment

I have a new SI.com column on today's arraignment of Roger Clemens. Here is an excerpt:

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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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To read the rest, click here. For a related video on SI.com, see

MLB financials and stadium funding

I don't understand finances enough to say much about Deadspin's (leaked) disclosure of the financial statements for a number of major league teams, which show that a number of the poorer small-market teams (including the Pirates, Marlins, and Mariners) actually have turned pretty good profits by keeping player payrolls way down and raking in (but not spending) revenue-sharing dollars. Several issues seem to be brewing here.

First, some are questioning revenue sharing as a workable means of leveling the economic playing field (at least without some other cost-and-spending measures, such as a salary cap or salary minimums) because of the incentives built into the system. Second, and relatedly, some are suggesting that teams (at least small-market teams) have no economic incentive to win because it is difficult to both win and turn a profit.

Third, and most interesting in these parts, is what this means for the future of stadium funding. The ridiculously advantageous deals that teams have been able to extort from communities have depended on cries of poverty from teams, which insist that they need the stadium to be economically competitive and that they currently lack the resources to pay for the stadium themselves and need substantial public funding. Certainly that was true for the Marlins, who are getting a roughly-$600 million ballpark for only $155 million ($35 million of which is a loan from the county) and keeping big chunks of stadium-generated revenue, with the city paying $125 million and the county about $360 million. But the Deadspin docs showed that the Marlins turned a $49 million profit in 2009. Several city officials would like to reopen the stadium deal and require the Marlins to contribute more towards the project.

The Marlins's response has been that "a contract is a contract." Which probably is true, if a bit arrogant. My contracts-professor colleague says it would take some showing that the city/county would not have entered the deal on these terms but for the Marlins' claims of poverty and that the Marlins either affirmatively lied about or withheld their true financial information--tough things to show. But this could have an effect on the deals that other small-market teams (notably the A's) are able to swing in the coming years.

The boondoggle nature of the public-stadium game is becoming clearer. But since it shows no sign of changing, I go back to my First Amendment interests. If public funds are going to continue pay for these cathedrals--which really only benefit the teams themselves--on largely false pretenses, then I should be able to wear whatever t-shirt I want, chant whatever I want, and decide whether or not I want to stand during coerced patriotic rituals. So there.