- Lester Munson, Legal Analyst
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With three additional prosecutors, more than 50 new interviews of witnesses, and hundreds of hours of meticulous preparation, the U.S. government on Monday began its second effort to persuade a jury in the nation's capital that Roger Clemens lied when he told a Congressional committee that he had never used performance-enhancing drugs.
It's been nine months since federal prosecutors took their first shot at Clemens, an effort that ended in a humiliating mistrial when they mistakenly showed the first jury a video of a committee hearing that U.S. District Judge Reggie Walton had barred. Like the first attempt before it ended abruptly, this trial is expected to take four to six weeks.
Neither prosecutors nor the Clemens defense team led by Houston attorney Rusty Hardin, one of the nation's finest trial advocates, have been sitting idly waiting for the new trial. To Hardin's dismay, federal prosecutors and agents have relentlessly combed through the evidence, interviewing and re-interviewing key witnesses. In addition to the extensive investigation, the government has added three lawyers to a prosecution team that seemed overwhelmed by the preparations for the first trial and by multiple attacks, many of them quite sophisticated, from Hardin and the five other lawyers on the Clemens legal team.
In addition to lead prosecutor Steven Durham and Daniel Butler, who return from the first trial, the government team now includes assistant U.S. attorneys David B. Goodhand, an expert on appeals; Gilberto Guerrero, Jr., who has successfully tried narcotics and violent crime cases; and, Courtney G. Saleski, a specialist in public corruption.
When Hardin suggested in a hearing last week that it was somehow unfair that the government was using the time between trials to strengthen their preparation and their evidence, Judge Walton was not sympathetic.
"I don't know of any case law that says the government's feet are cast in cement," Walton said.
Hardin has also used the nine months to his advantage. He promised in a hearing last week that he, too, had new material and would launch an all-out assault on a cache of syringes, gauze pads, and tissues that former Clemens strength coach Brian McNamee says he kept after injecting Clemens with steroids and human growth hormone in 2001.
Although Hardin offered no specifics and is barred by court order from talking with the media, it is clear from his comments that he intends to question the chain of custody of the potentially explosive evidence. McNamee claims that he kept the materials in a beer can and in a FedEx box for years before turning it over to government agents.
Hardin also has had time to analyze a book manuscript that McNamee prepared after the release of the Mitchell Report. The manuscript turned up shortly before the first trial and is sure to provide fodder for a cross-examiner with Hardin's formidable skills.
For Clemens, the trial is his last chance to recapture his legacy as one of the game's greatest pitchers. After the Mitchell report named Clemens as one of 87 MLB players who used steroids, Clemens was defiant, insisting in a press conference, in an appearance on 60 Minutes, in a civil lawsuit, and in testimony before a committee of the U.S. House of Representatives that he had never used PEDs. His campaign for his innocence did not go well and led to the charges that he lied to the Congress at the committee hearing and in a pre-hearing sworn statement to investigators.
But now, after the mistrial, it's not merely his reputation that is at stake. His freedom is also at risk. In his comments from the bench last July as he considered the government's blunder and the possibility of a mistrial, Walton said, "If this man got convicted, from my perspective, knowing how I sentence, he goes to jail." The highly unusual observation from Judge Walton leaves Clemens facing a sentence of 15 to 21 months, according to federal sentencing guidelines.
Although the trial will feature dozens of witnesses and hundreds of pages of exhibits, here are its four potential turning points:
• Testimony of Andy Pettitte: Clemens' good friend and former teammate told Congressional investigators that Clemens told him he used human growth hormone. Pettitte is deeply religious and exudes a level of sincerity rare among elite athletes. He will be difficult to cross examine. Clemens' best weapon, Hardin, will not be permitted to cross-examine Pettitte because Hardin briefly represented Pettitte, leaving the challenge to Mike Attanasio, another of Clemens' attorneys.
• Testimony of McNamee: Hardin's cross-examination of McNamee will be critical, and it will be brutal. McNamee has given inconsistent statements during the five years of the investigation. But the Republicans and the Democrats on the House Government Reform and Oversight Committee believed what McNamee told them about Clemens and rejected Clemens' claims of innocence. After listening to both McNamee and Clemens, leaders of both parties signed a letter asking the U.S. Department of Justice to investigate Clemens.
• Possible testimony from Clemens: Although Hardin and Clemens have prepared and rehearsed Clemens' testimony, it is not known whether Clemens will testify. Hardin and Clemens will decide after they have evaluated the evidence that the government presents. If he does testify, Clemens will face the challenge of impressing a jury with his integrity and his sincerity, something he has so far been unable to do in various venues.
• Jury nullification: Although it is not an official issue in the trial, Hardin will seize every opportunity to mention and to emphasize the government's sizable effort to investigate and to convict Clemens. In remarks and asides, Hardin will try to establish before the jury the notion that the U.S. government has better things to do than to pursue Clemens. The technique is known as "jury nullification" and suggests that whether or not Clemens lied to the Congress, it is not an important or significant issue and he should, therefore, be found not guilty. The prosecutors will be alert to Hardin's nullification attempts and will try to stop them before the jury hears them. It will be a daily battle.
With nine months after the mistrial for the highly skilled prosecutors and the masterly Hardin to prepare their cases, both sides will be working at the highest level. And both sides will be at risk of a terrible loss in the jury's verdict. In many similarly dramatic and risky situations, the two sides work out a settlement that is acceptable for both. But Clemens' defiance makes a settlement almost inconceivable.
The U.S. government on Monday will begin its second effort to persuade a jury in the nation's capital that Roger Clemens lied when he told a Congressional committee that he had never used PEDs.