- Lester Munson, Legal Analyst
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WASHINGTON, D.C. -- Brian McNamee began to do something here on Monday that he has already done at least 12 times -- tell his story of Roger Clemens' use of performance-enhancing drugs.
Clemens' former trainer told the story several times to the IRS and lead agent Jeff Novitzky in 2002 and 2003, at least once to George Mitchell in 2007 in his investigation of MLB's steroid era, twice more to a committee of the U.S. House of Representatives in 2008, a few more times to the FBI since the Mitchell report, once to the grand jury in 2008 that charged Clemens with obstruction of Congress and perjury, and a few more times to federal prosecutors as they rehearsed for his performance on Monday.
Testifying is an action, however, in which practice does not make perfect. If practice does anything, it may make things worse. It is almost impossible for any witness in any trial to tell the same story twice, much less a dozen times without an inconsistent statement here or there.
McNamee's multiple accounts will provide Clemens' lead attorney, Rusty Hardin, with a rich array of material for his cross-examination, a series of potentially inconsistent statements that Hardin will use in his attempt to portray McNamee as a serial liar who, as Hardin has said repeatedly in the trial, fabricated his tale for "fame and fortune."
The story that McNamee tells is long and can be compelling. Asst. U.S. Attorney Daniel Butler is leading McNamee through the story in painstaking detail, repeating important aspects of the tale to build the case against Clemens.
But, if McNamee stumbles on any detail, it is the kind of thing that can become a powerful weapon for a master trial lawyer like Hardin.
In his description of the first time he injected Clemens with a steroid, McNamee offered persuasive detail. It started, McNamee testified, when Clemens in the middle of the 1998 season with the Toronto Blue Jays, asked McNamee for a "booty shot." McNamee and Clemens had discussed steroids on two previous occasions, according to McNamee, and McNamee knew what he meant.
At Clemens' suggestion, McNamee went to Clemens' apartment in Sky Dome where Clemens had the drug, the syringe, and alcohol to cleanse the area, all set up in a bathroom. McNamee, who had been trained to inject his diabetic son with insulin, broke the glass ampule holding the drug, filled the needle and made the injection in Clemens' buttocks. McNamee told a captivated jury that it was the first time he had injected anyone other than his son.
"I just wanted to help," he said. "I didn't want injury or something to go wrong. I wanted to keep my players safe."
McNamee then answered a question from Butler that may come back to haunt McNamee and the prosecution:
"Were you worried that you might do something wrong?"
"It was not the first time Roger did that. He would have said something if I did anything wrong."
McNamee's assertion that Clemens had been doing steroids before McNamee's first injection is a detail never before revealed in testimony before the House Committee, in the 409-page Mitchell report, or in testimony from lead agent Novitzky. Is this assertion to be found in any of the statements McNamee made to the IRS or the FBI? Maybe. But probably not.
If McNamee added this highly incriminating detail to his story for the first time on Monday, Hardin will be able to produce a cross-examination that will be a model followed in law schools and lawyers' seminars for years.
Did McNamee embellish his story in his umpteenth telling? We'll know in a cross-examination that should begin late on Tuesday.
Thanks to a somewhat surprising ruling from U.S. District Court Judge Reggie Walton on Monday morning, the prosecution team has salvaged a major element of its evidence that had been in serious jeopardy.
No less than three times in his testimony under questioning from lead prosecutor Steven Durham, Andy Pettitte said that Clemens had admitted to Pettitte that Clemens used HGH to assist with "recovery."
But, responding to a question in a masterly cross-examination by Clemens attorney Michael Attanasio, Pettitte agreed that "as you sit here today, if you had to think about it in your own mind, it's 50-50 [you] might have heard or you might have misunderstood" Clemens' confession to using HGH.
Pettitte's answer prompted the Clemens legal team to ask Walton to strike Pettitte's account of Clemens' admission and to tell the jurors that they could not consider it in their decision. The reasoning was that because Pettitte couldn't remember beyond being 50 percent certain, the testimony should not be considered by law. Early indications from Walton were that he was leaning in the direction of striking Pettitte's testimony.
The prosecutors filed a 15-page brief on the issue, a sure sign that they were seriously concerned about losing the Pettitte testimony.
In a trial that features top-of-the line technology and handsomely produced exhibits, it was a homely, handwritten chart prepared by Durham that persuaded Walton that Pettitte's testimony would stand and the jury could consider it in its deliberations.
Durham, who must have somehow anticipated that portion of the cross-examination of Pettitte, drew a chart showing the dates of the HGH conversations between Clemens and Pettitte. Durham would never win a handwriting contest and has little artistic ability. The chart became Government Exhibit 45 and is easily the least impressive exhibit of the hundreds that are a part of the trial.
Showing the chart to Pettitte in an effort to repair the damage done by the 50-50 statement, Durham asked:
Question: "The chart that you have here, is this true and accurate to the best of your knowledge as you sit here today?"
Answer: "Yes, sir, to the best of my knowledge."
That was enough for Walton to conclude that Pettitte's current and best recollection is that Clemens told him that he used HGH for recovery.
It was a nice recovery by Durham, and it led to an important ruling for the prosecution.
Testifying is an action in which practice does not make perfect. If practice does anything, it may make things worse. It is almost impossible for any witness in any trial to tell the same story twice, much less a dozen times without an inconsistent statement here or there.