- Lester Munson, Legal Analyst
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WASHINGTON, D.C. -- Steven Durham, lead prosecutor in the Roger Clemens perjury trial, must have known what was coming Monday, as he patiently and painstakingly went through the steps necessary to play for the jury audio recordings of no less than 36 excerpts of Clemens' testimony before the U.S. Congress.
For each excerpt, he asked Phillip Barnett, the former staff director of the Congressional committee which led the investigation of steroids in baseball, a series of questions that were legally required before he could play the tapes for the jury. It was part of the proof necessary to show that Clemens lied in February 2008 in his statements in a pre-hearing deposition and during his testimony at the hearing. But, more importantly, it was part of an effort to show that the U.S. House of Representatives is capable of a serious inquiry.
At a time when the approval ratings of Congress are at historic lows, Durham knew that he must somehow show the jury that the committee members were working in the public interest when they questioned Clemens. In an obvious effort to portray the majesty of the legislative process, he began his presentation last week with photos of the U.S. Capitol and the Rayburn House Office Building where the committee does its work. He did everything but wave the flag.
It was a long process, but Durham was well prepared and highly organized, and he managed to maintain the jury's attention as he finished early Monday afternoon.
Then, as Durham and the prosecutors must have anticipated, the Clemens legal team -- in a cross-examination by Rusty Hardin -- attacked Congress, the committee, the investigation and the hearing.
The criticisms came quickly and dramatically. There was "no legislative purpose" for Clemens' testimony at the hearing. It was a "show trial." They were "out to get Roger Clemens because he dared to challenge the Mitchell report." Hardin worked at it all afternoon, facing objections from Durham and from William Pittard, the deputy general counsel of the House of Representatives who appeared in court on behalf of Barnett.
Hardin suggested that there was "no legislation proposed" and "no legislation possible." He used the specific charges of the indictment to argue that the questions could not have led to any legislation, which means the hearing did not occur legally.
"If Mr. Clemens denies that he discussed HGH with [former personal trainer Brian] McNamee, what legislation could you structure from that question and that answer?" he asked Barnett.
Gamely and patiently, Barnett insisted that the accuracy of the allegations in the Mitchell report were important to the committee in its evaluation of the report's recommendations. If the report was wrong about its assertions on Clemens, Barnett testified, the "committee would be less willing to accept the report's recommendations."
It was a high-risk maneuver for Hardin. Judge Reggie Walton warned Hardin that his tactic would "open the door" for the government to respond with an account of the extensive work that Barnett and the committee staff did during its investigation. Prosecutor Courtney Saleski listed the materials that the committee gathered, including the statement from Laura Pettitte, wife of Andy Pettitte, who told the committee her husband had told her that Clemens had admitted to Andy that he used HGH.
It doesn't mean necessarily that Laura Pettitte will now be permitted to testify. Walton barred her testimony last June and declared a mistrial in July when the government accidentally included it in its evidence. But it shows the risk that Hardin has undertaken as he launches a broad assault on all elements of the government's case against Clemens.
The risk did not seem to bother Hardin. He is likely to continue his attack when the trial resumes on Tuesday morning.
Hardin's risk came after a surprising development had occurred during Durham's presentation of the 36 excerpts. Durham had asked Barnett to describe a series of questions and answers in a deposition taken a few days before the committee hearing in February 2008 about Debbie Clemens' use of HGH. Roger Clemens had testified that while he was away, Debbie Clemens asked McNamee about HGH and decided to try it. According to Roger Clemens, McNamee injected Debbie Clemens in the master bedroom of the couple's mansion.
None of that was a surprise, but then Barnett explained that later in the deposition, prompted by a question from Hardin, Roger Clemens described his angry telephone conversation with McNamee.
Question: "Did you mention it (Debbie's use of HGH to Andy Pettitte)?"
Answer: "I don't think so."
It is going to be difficult for Clemens and Hardin to explain this testimony. Clemens' principal response to Pettitte's assertion that he admitted HGH use to Pettitte is that Clemens told Pettitte that Debbie, not Roger, had used HGH. He has now testified both ways on Debbie's use of HGH. Even Hardin, one of the nation's finest trial lawyers, will be challenged.
Trial Trivia: Hardin's mastery of trial technique was on display in subtle but important ways. As Hardin faced numerous objections to his cross-examination from prosecutor Durham and House of Representatives counsel Pittard, Hardin and the other lawyers would gather at Walton's bench for a sidebar conference. Even when his question had been ruled out, a bit of a defeat, Hardin walked away from every sidebar confab beaming. When the judge would rule against him in front of the jury, Hardin would thank him profusely and act as though he had just won a major point. These techniques are not original with Hardin, but no one does them better.
Clemens on Canseco: What are Clemens's thoughts on Jose Canseco? They were included in Durham's 36 excerpts. "I was very friendly with him," Clemens testified. "But not when I was facing him." They were teammates on the Red Sox, the Blue Jays and the Yankees. When Canseco would complain about aches and pains, Clemens testified, "I would tell him to get off the hard stuff and start using natural supplements. I told him the hard stuff made him look good in the lobby, but it makes you tight, and you break down."