Commentary

Meticulous but still on the losing end

Prosecution in Clemens perjury trial lays out trove of evidence but suffers losses

Updated: May 7, 2012, 8:31 PM ET
By Lester Munson | ESPN.com

WASHINGTON, D.C. -- It was a day of painstaking effort for federal prosecutors in the Roger Clemens perjury trial Monday, as they introduced nearly 40 exhibits of evidence in a critical effort to establish a basic foundation for the testimony later this week of star witness Brian McNamee.

In testimony that was occasionally dull but always important, lead prosecutor Steven Durham questioned the lead FBI agent in the case to introduce the jury to the complex chain of custody process that is necessary if the government is to be successful in presenting a trove of needles, cotton balls, ampules, pills, tissues that McNamee says he used to administer performance-enhancing drugs to Clemens.

Durham also introduced Clemens' personal statistics, team schedules and results, photos of an apartment where Clemens resided in New York while he played for the Yankees in 2002 and 2003, a log book of deliveries to the apartment building, photos of Clemens with Jose Canseco taken while they were teammates on three teams, and photos of McNamee's house in Queens with its cedar closet.

The bits and pieces make little sense separately, but together they make up what the government hopes will become a dramatic mosaic that proves that Clemens lied when he told a committee of the U.S. House of Representatives that he had never used steroids or HGH.

The schedules will corroborate places and dates of McNamee's narrative of Clemens' drug use. The apartment is where McNamee claims to have injected Clemens. The log book shows McNamee's presence in the building at times when he claims to have injected Clemens. The photos with Canseco will support the government's allegation that Clemens knew Canseco and talked steroids with him. And the house in Queens is where McNamee kept the trove of syringes and other materials from 2002 until he turned it over to the government in 2008.

It was an impressive bit of work by Durham and his team of agents, a thorough and meticulous showing that could pay dividends. But by day's end, despite the prodigious and well-organized effort, the prosecution had suffered two significant setbacks.

The first is the virtual elimination of one of the 15 specific false statements that are the heart of the government's case. The prosecutors contend that each one of the statements made to the House committee is false. If they could convince the jury that any one of the statements was false, they could convict Clemens. A series of rulings that began last week and continued on Monday from U.S. District Court Judge Reggie Walton has now all but eliminated one key statement.

The original charge in the indictment was that Clemens lied when he told the committee in a pre-hearing deposition that he had "no idea" that former Sen. George Mitchell wanted to talk with him as part of his investigation into steroid use in MLB.

Durham and the prosecution team planned to present Steve Fehr, the attorney for the Major League Players Association to show that he had passed Mitchell's request on to Clemens' agents and lawyers. They also planned to use Clemens' statement on "60 Minutes" that his attorneys had advised him not to talk with Mitchell.

It would have been compelling proof that Clemens lied to the committee. It was one of the most important of the 15 statements because it did not depend on any testimony from McNamee, who will face brutal cross-examination. Rusty Hardin, the brilliant leader of the Clemens legal team, obviously understood the importance of the allegation. In a continuing series of objections and highly creative arguments, he managed to obtain surprising rulings from Walton that have now eliminated the testimony from Fehr and the "60 Minutes" segment.

Walton based his ruling on his theory of attorney-client privilege, suggesting to prosecutors that they would not be able to use any communications with Fehr and that Clemens' statement on "60 Minutes" was also somehow covered by the privilege. It is difficult to comprehend how anything that Clemens said on "60 Minutes" can be privileged, but that was Walton's ruling.

Even if Walton is wrong (he is), there is little that the prosecutors can do. Rulings on this kind of evidence are the sole responsibility of the trial judge. It's a major victory for Hardin and Clemens, and prosecutors have no recourse.

The second setback came in a couple of signals from jurors that they are not yet buying into the government's case. Walton permits jurors to ask questions of the witnesses. One juror, in a question read aloud by Walton, asked FDA agent Jeff Novitzky, the investigator who has led the steroid prosecutions since 2002, whether he talked with the prosecutors about his testimony during the break in the trial over the weekend. It was a question based on significant suspicion of the government's effort. Novitzky told the jury, yes, he had conferred with the prosecutors.

Walton told the jury that Novitzky's discussion of his testimony with the prosecutors was "not illegal," but it could be considered as a factor in his veracity.

A second juror wanted to know why it took Novitzky nearly a month to inventory the McNamee trove of needles and other paraphernalia after McNamee and his lawyers had delivered it to the government. Novitzky explained that he was also working on other cases and that he needed the help of another agent.

The questions show that at least two of the 16 jurors are not yet impressed with the government's work. It is a particularly nasty blow for the government when the questions are aimed at Novitzky. He is one of the most articulate witnesses I have seen in decades of work in courthouses all over the U.S. If the jurors are not happy with Novitzky, it is not a good sign for the prosecution.