Commentary

Crucial confrontation coming

Star witness Brian McNamee to face star attorney Rusty Hardin in Clemens trial

Updated: May 13, 2012, 4:01 PM ET
By Lester Munson | ESPN.com

WASHINGTON, D.C -- With allegations of date rape, drug and alcohol abuse, perjury, tax fraud and fabrication of evidence surrounding Roger Clemens' former trainer, Brian McNamee, the Clemens legal team will be looking for nothing less than a walk-off home run when lead attorney Rusty Hardin cross-examines the government's star witness.

McNamee, whose testimony to MLB special investigator George Mitchell and to a Congressional committee led to perjury charges being filed against Clemens, is likely to begin his testimony Monday. Hardin will begin what promises to be a scorching interrogation late Monday or Tuesday.

Described as "Strength Coach #1," McNamee is mentioned no less than 25 times in the indictment against Clemens. His testimony is critical to all six of its major charges. And his testimony is the basis for the government's assertions that Clemens lied in 10 specific sworn statements to the committee. McNamee even has a role in the remaining five specific statements described in the indictment.

If Clemens is to have any hope of persuading the jury that he is not guilty, Hardin must succeed in his attack on McNamee. There is little doubt that Hardin is the right lawyer in the right case at the right time. He is one of America's greatest trial lawyers and a master of cross-examination.

In addition to Hardin's courtroom skills, the Hardin-Clemens legal team features a cadre of lawyers and investigators who have already demonstrated top-of-the line skills. Close readings of the legal papers filed before and during the trial show that they were frequently ahead of government agents in the gathering of information about McNamee and his checkered past, a highly unusual situation in a federal prosecution.

When government agents, for example, began to investigate the Florida date rape allegation involving McNamee, they found, according to court papers, "representatives for the defense" had already interviewed the investigators. Those "representatives" are Hardin's investigators. They are good, they are expensive, and they are effective.

The prosecutors clearly knew what to expect before the trial started. They filed two legal papers known as "motions in limine" seeking to suppress material from McNamee's past and to prevent Hardin from exploiting it in his attack on McNamee's veracity. Although Judge Reggie Walton has discussed the government's motions, he has yet to make definitive rulings, adding a layer of uncertainty to what will be the trial's most dramatic moments. Without any pre-examination restriction from Walton, objections will fly as Hardin probes into the dark corners of McNamee's world.

It is hard to imagine a better time, better circumstances or a better courthouse for a cross-examination of a critical prosecution witness.

The setup comes after Walton was forced to declare a mistrial in July due to a government blunder. Hardin refers repeatedly to the mistrial in the paperwork that will be the basis for his attack on McNamee, suggesting that when government agents "made a series of discoveries on McNamee eroding his credibility," these discoveries were "quickly followed by the mistrial." In a dark and conspiratorial allegation, Hardin suggested that the mistrial came on the day after the prosecutors received a transcript of a statement from a Florida police detective who had investigated date rape allegations against McNamee.

The suggestions that the government deliberately caused the mistrial are not going to result in any definitive rulings from Walton. He has already ruled that the government error that caused the mistrial was accidental and not deliberate. But the reminders of the government's error may lead Walton to make any close calls in favor of the defense. It's a clever maneuver from Hardin, and it is expected to pay dividends in his attack on McNamee.

Hardin's attack on the prosecutors' motives comes only a few months after other prosecutors in the same office in the same courthouse were found guilty of misconduct in their pursuit of fraud charges against the late Sen. Ted Stevens (R-Alaska). The Stevens fiasco offers Hardin one more shot at the prosecutors, and he has used it in the papers he has filed for Clemens.

Brian McNamee
Scott J. Ferrell/Congressional Quarterly/Getty ImagesBrian McNamee is the government's key witness in the perjury case against Roger Clemens.

The law that governs trials in the courthouse here also helps Hardin and Clemens. In a case decided by the D.C. Court of Appeals known as U.S. vs. Fonseca, the higher court ruled that a judge in Walton's position must be "cautious in limiting cross examination" of a key witness such as McNamee. Hardin has already cited the case, and Walton will be sensitive to it.

Although Hardin will cover McNamee's numerous troubles and indiscretions (a DUI conviction, misconduct as a New York police officer, and forging his wife's name on a loan application,) his most productive attacks on McNamee may be a series of disasters in McNamee's life in 2001 and how Hardin thinks McNamee reacted to it.

In his focus on 2001, Hardin is expected to confront McNamee with an incident at a St. Petersburg, Fla., hotel in which McNamee, according to court papers, was found "naked and intertwined in the hotel pool" with a woman who had been "rendered incoherent from unknowingly ingesting a date rape drug."

If Walton permits it, which he should, Hardin is expected to accuse McNamee of lying to the investigating police officers and attempting to shift the blame for the use of the date rape drug to one of his colleagues on the staff of the New York Yankees.

It is no coincidence, Hardin will likely suggest, that during the same year McNamee's drug use "escalated dramatically," culminating in an episode in a Seattle hotel late in the baseball season when McNamee was found convulsing and incoherent in the lobby.

Knowing that he was in trouble with the Yankees and with Clemens, Hardin is expected to suggest in his questions, McNamee decided in 2001 to fabricate what is now the physical evidence that the prosecutors have shown to the jury -- syringes, ampules, vials, tissues and cotton balls that McNamee claims he used to inject Clemens with steroids and HGH.

Finding himself "destitute and desperate" as the result of the disasters of 2001, Hardin has suggested in court papers, McNamee has "motive," and his "plan" to "lie to federal investigators and/or to sensationalize his accusations was in order to gain fame and fortune." McNamee concocted his story of Clemens and performance-enhancing drugs as a way of paying his massive debts ($40,000 in legal fees in Florida and an unpaid loan of $50,000), Hardin is expected to suggest in his questions.

He'll also likely confront McNamee with the 292-page book manuscript that McNamee wrote as further evidence of McNamee's plan to exploit his relationship with Clemens and to dig himself out of a deep hole of debt.

Hardin will be asking the jury to accept a story that contradicts almost everything that the government has presented to the jury at this point. It will be a challenge. Even for a lawyer with formidable skills and meticulous preparation, it may be too great a challenge. But, if Hardin can convince even a minority of jurors that McNamee is a "serial liar," then Clemens could be well on his way to recapturing a portion of his lost legacy.

Both the prosecutors and McNamee know that Hardin's cross-examination will be the turning point of the trial. Although they cannot discuss the situation as the result of a Walton-issued gag order, there is little doubt that lead prosecutor Steven Durham and his team have been preparing and rehearsing McNamee for the battle.

Hardin and Clemens have been looking forward to the cross-examination of McNamee ever since Clemens and McNamee sat at the same table and testified before the House committee in February 2008. Before the gag order, Hardin did not hesitate to tell anyone who would listen that only in a jury trial can Clemens test the veracity of McNamee's allegations.

Unlike the hitter in the ninth inning of a close ballgame who had no way of knowing that his at-bat would be the turning point of the game, Hardin has known for more than four years that this moment was coming. The jury will decide in its verdict whether Hardin will succeed in his effort to hit it out of the park.