Commentary

Prosecution case boring but effective

First day of testimony in Clemens trial a snoozer at times, but awfully impressive

Updated: July 13, 2011, 8:51 PM ET
By Lester Munson | ESPN.com

WASHINGTON, D.C. -- Federal prosecutors might call 45 witnesses and offer more than 300 exhibits, but they demonstrated Wednesday that they are highly organized and meticulously prepared as they began to present their evidence that Roger Clemens lied to the U.S. Congress. And they showed they are not afraid to be boring so long as they are able to push their material in front of the jury and move toward a conviction.

[+] EnlargeRoger Clemens prosecutors
AP Photo/Alex BrandonAssistant U.S. attorneys Daniel Butler, left, and Steven Durham leave federal court Wednesday in Washington.

In a confident and relentless opening statement, assistant U.S. attorney Steven Durham led jurors step by step through the congressional investigation into performance-enhancing drug use in Major League Baseball, the George Mitchell investigation and the Clemens testimony that led to his indictment on perjury charges.

Leaving nothing to chance, Durham began with the basics. In clear and concise sentences, he explained the authority of a committee of the U.S. House of Representatives to conduct the investigation. He explained the importance of truthful testimony to the success of the investigation. And he used a photo of Clemens with his right hand raised as he took the oath in the House committee room to show the solemnity and the gravity of the inquiry.

Although no one would ever describe Durham as flashy or eloquent, he had the jurors transfixed when he promised them that the prosecutors would offer powerful proof of Clemens' drug use. "We will prove it through the details," Durham said, his voice raised slightly. "We will show you the date, the time, the place and the source" of every drug incident.

If anyone thought people lied to Congress every day and it made no difference, Durham made it clear it was no joke. Referring to the 15 Clemens statements to the committee that are described in the indictment as false, Durham told the jury that even though the prosecutors were required to prove only one of the statements to be false, "we will prove them all to be false."

Recognizing the size and scope of the government effort, Clemens' lead attorney, Rusty Hardin, in his opening statement offered the jurors a chart that described the metrics of the undertaking -- five government lawyers, 103 law enforcement officers working in 72 locations and 229 investigative reports. Hardin scoffed at the effort, suggesting that Clemens' "only crime was having the poor judgment to stay connected to" personal trainer Brian McNamee, the government's star witness.

Hardin might scoff, but it is clear from Durham's opening statement and the first two federal witnesses that Hardin and Clemens are in for a bumpy ride as they try to destroy McNamee's credibility and attack the House committee's investigation into baseball's steroids era.

Durham stayed with the basics as he began presenting evidence. He even offered a copy of the U.S. Constitution for the jurors' consideration, just in case anyone was in doubt that the U.S. Congress consists of a House and a Senate. To make it even clearer, he showed an aerial shot of the U.S. Capitol.

To establish the authority of the committee to investigate performance-enhancing drugs in MLB, Durham brought in Charles Johnson, the retired parliamentarian of the House, who described the arcane process that led to the House rule that was the basis for the investigation. The rule, known as Rule X(4), was described in the indictment back in August of last year, but Johnson explained in exact (and, again, boring) detail.

Why would Durham risk boring the jury with these basics? He was inserting the substance and the magnitude into the case, showing the jury that Clemens was not merely popping off but was instead defying the historic body that enacts the laws that govern the nation.

In an occasionally plodding and (again) boring presentation, Durham showed the jury 39 excerpts from Clemens' testimony at a prehearing deposition. According to the exhibit list filed by Durham and fellow prosecutor Daniel Butler, they soon will show the jury at least seven video excerpts of Clemens' combative testimony before the committee -- five days after the deposition.

Leaving nothing to chance, Durham also showed the jurors three photographs of the Rayburn House Office Building and Committee Room 2154 where Clemens testified.

There will be more of that boring material when Durham and Butler offer the lab tests of the cache of needles, swabs, facial tissue and cotton balls that McNamee saved in a FedEx box. The pretrial documents filed by the government show several expert witnesses who will testify that Clemens' DNA and steroid residue were found on this paraphernalia.

But, boring or not, the evidence that Durham described and has begun to offer puts Clemens in a corner. Hardin is one of the best, but even he will have serious difficulty as the prosecutors continue their methodical and relentless (and boring) presentation of the evidence. It might be occasionally boring, but it also can become persuasive as it builds and builds to proof of guilt.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.