WASHINGTON -- Roger Clemens' defense team will argue that his former trainer came up with a plan to blackmail him with manufactured evidence in 2001, long before either become embroiled in the sporting world's ongoing steroid scandal.
During a pre-trial hearing in U.S. District Court on Tuesday, defense attorney Rusty Hardin said Clemens' longtime personal trainer, Brian McNamee, was worried that a rape investigation involving him would lead the Yankees to fire him as their strength coach. Their argument is that McNamee took syringes and gauze pads with Clemens' DNA and tainted it with performance-enhancing drugs with the intention of blackmailing Clemens into giving him a job.
That physical evidence was given to federal investigators after Clemens testified before Congress in 2008 that he never received human growth hormone or steroids from McNamee.
Clemens is charged with perjury, false statements and obstruction of Congress for telling a House committee under oath that he never used steroids or human growth hormone during his 23-season career.
Hardin telegraphed his strategy Tuesday while addressing one of several pre-trial motions. Jury selection in Clemens' federal perjury trial begins Wednesday morning, and opening statements are expected early next week. Clemens sat quietly throughout the hearing and did not speak to reporters afterward.
The defense will argue that when federal investigators approached McNamee in 2007 about his distribution of performance-enhancing drugs, he lied about providing Clemens with drugs and offered what they say is the manufactured evidence.
The issue was raised when prosecutors moved to have any discussion of the 2001 rape investigation precluded from the trial. McNamee was not charged in the case, but police reports of the incident at the Yankees' team hotel in St. Petersburg, Fla., paint an ugly picture.
Prosecutors argued that telling the jury that McNamee was the subject of a rape investigation would be prejudicial, and U.S. District Judge Reggie Walton said he was inclined to agree, although he did not issue a ruling. Hardin said he'd like to leave the door open because he believes the rape investigation "guided his [McNamee] conduct" afterward.
Walton also said he is unlikely to let prosecutors ask Clemens' former teammates Chuck Knoblauch and Mike Stanton whether McNamee gave them PEDs, saying he doesn't want the jury to assume that just because McNamee gave them banned drugs means he gave them to Clemens.
Walton said it would be "extraordinary" to allow such testimony and mentioned that he got cortisone shots from a trainer as a college football player. "I would not want to be held responsible for doing something inappropriate based on what that trainer was giving to other people," Walton said.
It also was established on Tuesday that Clemens "is not a scholar of linguistics."
That point was put forward by one of his attorneys, Michael Attanasio, to make the case that when his client famously said Andy Pettitte "misremembered" a conversation about human growth hormone, he actually meant that he "misheard," a word Clemens did first use when asked about Pettitte's statement that Clemens confessed to using HGH.
The larger point at stake was how Clemens' defense team plans to handle Pettitte, a key witness for the government.
Federal prosecutors want Pettitte's wife, Laura, to testify that Pettitte told her about his confessional conversation with Clemens the day it happened in 1999 or 2000. But the defense argument is that Pettitte misunderstood Clemens during the conversation, not that his memory failed him later. If he misunderstood in the first place, that means Laura Pettitte's testimony would be irrelevant.
Former Rep. Tom Davis of Virginia, the top Republican on the House committee that conducted the 2008 hearings, told ESPNNewYork.com's Ian O'Connor that he thought Pettitte was a credible witness.
"Absolutely, because Pettitte didn't have a dog in the fight," he said. "Otherwise it's a he-said, she-said. Pettitte didn't have any reason to do anything but tell us what really happened, and he came across that way."
Another pre-trial issue that could have an immediate impact on the case was a relative curveball for Walton. Hardin said the defense has been asking the government for an audio recording of Clemens' testimony to Congressional investigators that took place before his hearing in February 2008. They would like the jury to hear Clemens' voice rather than have them rely on a transcript.
Prosecutors said the House of Representatives' reporter was unwilling to turn the tape over, claiming it was proprietary. Walton said if he were to order the House to turn the tape over, then the House almost certainly would appeal, delaying the Clemens trial until the case was resolved in the U.S. Court of Appeals.
"I kind of hate being in this position," Walton said.
Hardin suggested that rather than issuing an order, "Can we be kind and gently persuade them?" That's the strategy for the time being.
Clemens stared ahead without taking notes like he did at previous proceedings and walked so quickly out of the courthouse, surrounded by media, that his attorney called for him to slow down.
The indictment accuses Clemens of making 15 separate false statements during both the deposition and hearing testimony, including denials of drug use, insistence that Pettitte must have misheard him about using drugs and denials that he attended a party at admitted steroid user Jose Canseco's house.
The six charges Clemens is accused of carry a maximum sentence of up to 30 years in prison and a $1.5 million fine. But it would be unlikely even if he were convicted that Clemens would be sentenced to nearly that long because he doesn't have a criminal record.
Davis said it was "unfortunate" watching the Clemens saga unfold.
"I hope whatever happens to Roger people remember his feats on the field and his generosity," he said. "None of us are perfect. To some extent, you have to look at the complete individual. I think it's just a mistake he made along the way, but we'll have to see. Maybe he'll be vindicated."
T.J. Quinn is a reporter for ESPN's Enterprise/Investigations unit. He can be reached at firstname.lastname@example.org. Information from ESPNNewYork.com's Ian O'Connor and The Associated Press was used in this report.