WASHINGTON, D.C. -- The air in the courtroom was stifling. The judge was increasingly impatient. The questions were repetitive. Members of the large audience were glancing at the clock again and again. There was nothing about it that would ever be part of a John Grisham novel or a "Law & Order" trial scene.
But late Tuesday afternoon, when Asst. U.S. Attorney Daniel Butler concluded more than 10 hours of questioning of Brian McNamee, the former trainer of Roger Clemens and a critical government witness, he had produced some impressive evidence. It is the kind of evidence that, when stitched together in a final argument, could lead a jury to convict Clemens of obstruction of Congress and perjury.
After Butler finished and in the opening moments of what promises to be a blistering cross-examination, lead Clemens attorney Rusty Hardin began his attack on McNamee and his veracity. In a matter of only 17 minutes, Hardin managed to show photos of McNamee wearing a tie with the logo of a company in which he had an interest when he appeared before the federal grand jury that indicted Clemens and wearing a sweatshirt emblazoned with the logo of a sports website he was promoting when he appeared on "The Howard Stern Show."
The questions and the photos will support Hardin's theory that McNamee fabricated his tale of Clemens and performance-enhancing drugs for his own "fame and fortune." It's a promising theory, but it does not explain some of the evidence Butler managed to produce during what seemed to be an endless examination of McNamee. Here are some things Butler managed to show and that will be problems for the defense:
McNamee's familiarity with Clemens' New York City apartment: Using photographs of the building and the interior of the Upper East Side apartment where Clemens lived in 2001 and 2002 when he played for the Yankees, Butler managed to show McNamee was very familiar with the apartment. Why had he been there? There was no gym in the apartment -- so he was not there to help Clemens with his workouts.
McNamee said he was in the apartment to inject Clemens with steroids. He offered convincing details, describing the doorman by name (Carlos) and explaining how, with help from Carlos, he could park by a fire hydrant and make his quick visit to inject Clemens.
Will Clemens offer some alternative explanation for the presence of a personal trainer in the apartment of an MLB superstar? If there is no explanation, McNamee's detailed knowledge of the apartment is the kind of thing that can persuade a juror McNamee was truthful.
Piles of PED paraphernalia: When the jurors retire to deliberate their verdict, they will have two large cardboard boxes among the dozens of exhibits that will be piled up in their room. Inside the boxes (Government Exhibit No. 52) will be nearly two dozen enormous plastic envelopes filled with syringes, needles, ampules of steroids, human growth hormone kits, bloody gauze pads and cotton balls. The plastic envelopes and the contents will make a dramatic pile in the jurors' room, and will be impossible to ignore. In countless drug cases, federal prosecutors have used similar arrays to their advantage. Unless the Clemens team can persuade the jurors that McNamee fabricated this large quantity of evidence, it will sit in the middle of the jurors' deliberations as a dramatic testament to the government's contention that Clemens used these things and lied about them.
Andy Pettitte corroboration factor: Judge Reggie Walton will not permit the prosecutors to show the jury that Pettitte obtained HGH from McNamee. It would be powerful evidence for the government that would suggest that if Pettitte says he obtained HGH from McNamee, it is highly likely Clemens did the same. Even with Walton's ruling, however, Butler managed in his questions to McNamee to insert Pettitte's name into McNamee's testimony on four occasions, drawing anger from the Clemens defense team.
The jury now has heard that Clemens obtained HGH from McNamee and that McNamee injected it. It also has heard that Roger Clemens' wife, Debbie, obtained HGH from McNamee and that McNamee injected it. And, as the result of Butler's questions to McNamee on Tuesday, the jury knows Pettitte used HGH.
The 14 jurors have seven advanced degrees and include one lawyer. Will these jurors do the math? If Pettitte used HGH, wouldn't it be likely that he obtained it from McNamee? And doesn't that mean it is more likely that McNamee was truthful when he testified that he facilitated HGH use for both Roger and Debbie Clemens?
The whole truth on Capitol Hill: Although Walton would not permit Butler to ask McNamee about his testimony before a committee of the U.S. House of Representatives in February 2008, Butler showed the jury a photo of McNamee and Roger Clemens with their right hands raised as the committee chairman administered the oath to tell the truth. Standing between McNamee and Clemens in the photo was attorney Charlie Scheeler, one of the principal investigators for former Sen. George Mitchell in his probe of PEDs in Major League Baseball.
Despite Walton's ruling that barred evidence of McNamee's testimony to the committee, it is clear from the photo that McNamee and Clemens testified on the same day before the same committee. And it will be clear to jurors that McNamee testified before them as a witness in court and that Clemens is before them at the wrong end of a federal indictment. A discerning juror would notice McNamee testified before the committee and the grand jury, and that both panels appeared to believe and to conclude that Clemens was lying. In a decision by the trial jury that could be a close call, the decisions by these previous panels could tip the balance in favor of the prosecution.
Plausible reason to preserve drug paraphernalia: In his questions to McNamee, Butler established the apparent fact that McNamee's wife, Eileen, was not happy about what McNamee and Clemens were doing with steroids and HGH. "She gave me a hard time all the time," McNamee told the jury.
"You are going to go down," she warned repeatedly, according to McNamee. McNamee testified that, hoping to end that anguish at home, he made a decision to keep some paraphernalia. He said that although he had no specific plan for use of the material at the time he brought it home, he showed it to his wife in the family kitchen. Butler even showed the jury a photo of the kitchen. McNamee then placed the materials in a FedEx box, and hid it first in a basement cedar closet and later behind a bureau in a walk-in closet.
Turning in his chair to look straight at the jurors, McNamee concluded, "I brought it home, and she stopped."
Plausible explanation for delivering paraphernalia to federal agents: In his first few visits with lead federal agent Jeff Novitzky, McNamee did not mention his trove of drug paraphernalia. Butler asked him why he did not make the disclosure.
"I didn't want to hurt Roger. I was trying not to hurt him any more than I had already. I was minimizing the extent of the use of steroids, and, in my mind, I was telling the truth," McNamee said.
But Clemens made a secret recording of a telephone conversation with McNamee at the time of the release of the Mitchell report and played it in a bizarre news conference that resulted in national coverage. It included conversation about McNamee's son and his serious health problems.
"I was furious," McNamee told the jury. "It was steroids and baseball. It had nothing to do with a child. But [Clemens] put it out there, and there is no taking it back." He said he quickly decided to deliver the physical evidence to his lawyer and then to Novitzky.
Hardin will certainly do some damage to McNamee and the story he told in response to Butler's questions. He might, for example, explain McNamee's familiarity with Clemens' apartment with Clemens' offer to give McNamee toys and furnishings that Clemens did not want to bother moving to Houston when he left the Yankees. And he will test McNamee on his explanations about the physical evidence. But there is no doubt that Butler, despite his repetitive and awkward questions, produced important prosecution evidence, the kind of evidence that can tip an undecided juror toward a conviction.