- T.J. Quinn
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When he met with members of Congress in early 2008, Roger Clemens was told repeatedly he was not required to testify before the House Committee on Oversight and Government Reform investigating drug use in baseball. But Clemens, with his reputation and place in the Baseball Hall of Fame at stake, said he wanted to defend himself against accusations from his former trainer, Brian McNamee, that he had used performance-enhancing drugs.
Maryland Rep. Elijah Cummings had a warning for Clemens: "I said, 'If you tell the truth, you'll be fine. If not, you're gonna have big problems.'"
Clemens said under oath that he never used PEDs -- "Let me be clear. I have never taken steroids or HGH" -- and he listened as McNamee told the committee that he had. The committee leadership ultimately believed McNamee, and the Cummings-predicted big problems for Clemens began to unfold as the U.S. Attorney's Office investigated a possible perjury charge against the former pitcher. On Aug. 19, 2010, a federal grand jury returned an indictment saying Clemens had probably committed perjury and obstruction of Congress.
Clemens has remained indignant, repeating that he never used PEDs and did not lie to Congress -- and he and his lawyers have said he's eager to get his day in court. That begins Wednesday morning in U.S. District Court in Washington, D.C., when jury selection kicks off a trial that is expected to last four to six weeks. Opening statements are expected next Monday or Tuesday.
The trial will pit two veteran government prosecutors known for their stoic, workmanlike manner against colorful Texas legend Rusty Hardin. It will be the word of McNamee, the government's crucial but maligned witness, backed by Andy Pettitte, Clemens' former teammate and friend, against Clemens. Watching over it all will be Judge Reggie Walton, a veteran jurist with a reputation for running a fair trial but issuing harsh sentences.
If convicted on all of the counts, Clemens faces a combined maximum sentence of 30 years in prison and a $1.5 million fine, though attorneys said a maximum sentence of three to six months in prison would be more likely.
A look at some of the key issues and participants:
Brian McNamee's credibility
The greatest weakness the government had in the recent perjury and obstruction of justice case against Barry Bonds was his trainer's refusal to testify. Greg Anderson chose to spend more than 14 months in prison on contempt of court charges rather than implicate his friend and testify that volumes of drug schedules and test results referred to Bonds. That refusal meant that much of the government's most important evidence was excluded from the trial as hearsay.
But in U.S. v. Clemens, the government has its Greg Anderson. McNamee, a former strength coach for the New York Yankees and Toronto Blue Jays, was also Clemens' personal trainer. He told federal investigators, George Mitchell and members of U.S. Congress that he injected Clemens with illegal performance-enhancing drugs, and he will be the government's chief accuser during the trial. McNamee also gave investigators syringes and gauze that he said were used to inject Clemens with PEDs in 2001 or '02, evidence that is expected to contain Clemens' DNA.
The question, though, will be McNamee's credibility, and anyone familiar with the case expects the defense to vivisect him during cross-examination. He's a former police officer who got into trouble for letting a criminal escape, and later, when he was a trainer for the Yankees, also lied to police during a rape investigation.
"What's going to make the case is the corroborating evidence [from Andy Pettitte and others]," said Peter Keane, a professor and dean emeritus at the Golden Gate University school of law. "Without that the case would be very weak, but when you add to it Pettitte, who's very believable, the corroboration makes up for the lack of credibility the jury's going to find in McNamee."
Clemens' fellow Texan and former teammate with the Yankees and Astros is expected to be the linchpin for McNamee's credibility. Pettitte testified to committee members that Clemens discussed using HGH with him and that they both received it from McNamee.
Clemens famously said during the hearings that Pettitte "misremembered" their conversation, but unless the jury is packed with Red Sox fans, observers expect Pettitte's testimony to cement McNamee's credibility.
"I would think he would be viewed as very credible and people would be interested in what he says," said Jerry Block, a criminal defense attorney with the Venable law firm in Washington and a former counsel to the U.S. Senate on congressional investigations.
Pettitte has his own vulnerabilities, however. He publicly admitted using performance enhancers when the Mitchell report was released, generally receiving praise for his honesty, but his admission came in fits and starts. At first, Pettitte said he tried HGH in 2002 to enhance his recovery from an elbow injury. When he met with congressional investigators, however, Pettitte admitted he had used it again in 2004 after his father supplied him with it.
But Pettitte has enjoyed a near-complete public rehabilitation, and his reputation as an honest, religious family man remains largely intact. So how should the defense team handle him?
Keane, who has closely followed the Clemens and Bonds cases, said the defense is better off going after Pettitte's memory than his honesty.
Michael Attanasio will cross-examine Pettitte to resolve a conflict of interest that exists because Hardin briefly represented Pettitte.
"I think if you're Hardin, what you do is try as best you can to completely destroy McNamee, which actually should be pretty easy, and then somehow raise reasonable doubt as to whether Pettitte is remembering things correctly," Keane said. "You don't attack him directly and call him a liar."
Instead, Keane expects Attanasio to be sympathetic, treating Pettitte as a friend with a faulty memory, put in a horrible position by the government.
But not everyone agrees on that approach.
"The approach of crediting him as a good guy who misremembers, you're asking a jury to bite off a lot," said Andrew Wise, a former public defender in Washington, D.C., and a veteran federal criminal and civil attorney with Miller & Chevalier. "My guess is they'll [portray] him as a guy whose story has evolved and is worried about protecting his legacy. I don't think they can afford to treat him too gently."
Shortly after the hearing in 2008, when accusations of dishonesty began flying between Clemens and McNamee, McNamee suddenly produced evidence that he said he had kept for seven or eight years: needles, syringes and gauze that he says he used to inject Clemens with illegal performance enhancers.
Before Judge Walton issued a gag order, defense attorneys accused McNamee of manufacturing evidence and said it would be easy to pick apart.
But one law enforcement source familiar with the government's case, but who is not working directly with it, said the evidence is more than sufficient. "We've won cases on evidence that wasn't as good as this."
Another attorney familiar with the government's case said the material will need to show more than Clemens' DNA, as Clemens' attorneys will stipulate that McNamee injected Clemens with the legal substances lidocaine and vitamin B-12 and would have had access to his DNA. The strength of the evidence may turn on what else the forensic testing turned up.
"In order for it to really be relevant it's got to have some residue of the [illegal] drugs. If it doesn't, it's marginally relevant to show that McNamee was giving injections to him. There's gotta be some residue of the drugs on the syringe or the bloody gauze," the attorney said. "If it doesn't show lidocaine and B-12, that could be damaging, too."
Wise, the former public defender, said the government will have to be careful with how it handles the evidence.
"In these days of the 'CSI' TV shows, juries always like physical evidence," he said. "You do have to have some questions about how McNamee had all this stuff and what he wanted to do with it. If they can't convince the jury why he had it in a convincing way, it could blow up in their faces."
Block, the former U.S. Senate counsel, said if the defense effectively destroys McNamee, it may damage the evidence in the process. "I would think with an ex-cop with a bad record, a jury might be willing to entertain the possibility that evidence was manufactured and be suspicious of it," he said.
The lead defense attorney, Hardin, is a star in Texas, so engaging during trials that juries have sent him thank-you cards after delivering their verdicts. But Houston isn't Washington, D.C., and Hardin's ability to connect with the jury is seen as a potential turning point in the trial. How will his folksy cowboy manner play with a Washington jury that draws from a pool largely comprising educated liberals but also members of the working class?
"There won't be that immediate simpatico that Rusty Hardin always has when he's got a case in Texas. But a great criminal defense lawyer is a great criminal defense lawyer, and he's going to work his magic no matter where he is," Block said.
D.C. juries are generally good for the defense, several attorneys said, and should be receptive to Hardin's charms, but they also might be more likely to look unkindly on a defendant if they believe he lied to Congress.
"It'll be a real cross-section of D.C -- lawyers, government people, people from southeast D.C. who are more working-class," Wise said. "This last case I had we tried twice after a mistrial; the difference in the jury panels was stunning. The first was 40 percent white, very middle-class; the second was 20 percent white, much more blue-collar."
In Judge Walton, Hardin will find a referee who will give him great leeway to try his case, several attorneys said, as long as he stays on point.
"If he gets out of hand," said a veteran attorney with several cases before Judge Walton, "Walton will rein him in quickly."
A number of other less-tangible, less-predictable elements of the trial could register with the jury: Are there baseball fans on the jury? Will they be less connected to a player many of them probably never rooted for, or impressed with his celebrity?
Will Clemens risk testifying and open himself up to what could be a brutal cross-examination? The book says to keep the defendant off the stand, but Clemens has surprised many observers with his active defense of himself in the public arena, appearing on "60 Minutes" and holding a press conference that ended with his abrupt departure in a huff.
How disciplined will Clemens be in court? Bonds was the model defendant, sitting quietly and never reacting to even the more personally humiliating testimony. Can Clemens keep it together that long, especially when McNamee is on the stand?
And finally, will Mitchell's appearance have weight with the jury? The former senator could add gravitas to the government's presentation if he testifies that he found McNamee believable.
T.J. Quinn is a reporter for ESPN's Enterprise/Investigations unit. He can be reached at firstname.lastname@example.org.
Trial begins this week to determine whether former pitcher told the truth about PEDs