Commentary

Clemens' lawyer draws out McNamee

Updated: May 16, 2012, 6:21 PM ET
By Lester Munson | ESPN.com

WASHINGTON, D.C. -- Only 45 minutes into his cross-examination of former Roger Clemens trainer Brian McNamee, attorney Rusty Hardin deftly placed a huge, hand-lettered poster board next to McNamee with the words "MISTAKE," "BAD MEMORY" and "LIE" in block letters.

For the next two hours, each time the jurors looked at McNamee as he tried to respond to Hardin's questions, they saw the three words that will be the themes of Hardin's attack on McNamee's character.

With the timing and the presence of a master thespian, Hardin set up the poster board before any of the five federal prosecutors could object. He began the maneuver innocently enough, walking to a far corner of the courtroom to pick up the poster board and its tripod. Although Hardin has at least 11 people assisting him in the courtroom, he struggled alone to move the cumbersome apparatus across the room to place it next to McNamee.

With every juror watching him, the 70-year-old Hardin worked his way slowly among tables, chairs and a podium to place the poster board exactly where he wanted it -- next to McNamee. It would not have been a surprise if one of the jurors had left the jury box to assist Hardin.

Even before he set up the poster board and its damning list of labels for McNamee's testimony, though, Hardin had put McNamee's credibility into jeopardy with a series of questions on the numerous statements (a dozen or more) that McNamee made to investigators:

"You deliberately withheld information?"

"Yes."

"You remembered more and more things as you made more statements [to investigators]?"

"Yes."

"You were mistaken sometimes?"

"Yes."

"You forgot some things and remembered them later?"

"Yes."

[+] EnlargeBrian McNamee
AP Photo/Jacquelyn MartinFormer trainer Brian McNamee, who worked with All-Star pitcher Roger Clemens, leaves federal court in Washington on Wednesday after testifying.

"You lied intentionally?"

"Yes."

As if that were not enough, Hardin also succeeded in getting McNamee to define a "lie" as something "that is intentionally not true" and that is designed "to cause another person to rely on it."

Resplendent in a light tan seersucker suit and bright orange tie, Hardin wants his questions and McNamee's answers to clearly define what Hardin and Clemens believe to be the central issue of the perjury trial -- McNamee's veracity.

"Would you agree with me that whether Roger Clemens used steroids depends on whether you're telling the truth," Hardin asked McNamee, prompting an objection from prosecutor Daniel Butler. U.S. District Court Judge Reggie Walton ruled for the prosecution, and McNamee was not required to answer the question. But Hardin had made his point.

A few minutes later, Hardin challenged McNamee with, "Do you sometimes just make things up?" McNamee responded that he had "never made anything up," but Hardin again seemed to have scored.

In addition to establishing the central issue of McNamee's credibility in dramatic and compelling ways, Hardin appeared to be setting up what he hopes will be embarrassing moments for McNamee and the prosecution as the cross-examination continues.

As Hardin began to question McNamee about Clemens' workouts after what McNamee claims was a final injection of steroids, McNamee made the surprise statement that Clemens had told him that in his retirement from baseball, he intended to change his workout and to "get big, really big." Hardin's response was the response of a master trial lawyer whose instincts told him instantly that McNamee was embellishing his story.

"Can you explain why you never told anyone about this conversation before?" Hardin demanded.

Hunched over the microphone on the witness stand, McNamee admitted, "No, I can't explain it."

Hardin responded in a similar way when McNamee told the jury that he somehow knew Clemens had been using steroids even before he pitcher first asked McNamee for a "booty shot" -- a shot into the buttocks.

Knowing that McNamee had never made the same claim in any of his numerous interviews with agents or in his statements to the committee of the U.S. House of Representatives, Hardin probed further. The best that McNamee could do was a lame assertion that he may have heard Clemens and Jose Canseco discussing steroids while they were with the Toronto Blue Jays in 1999, but "I just can't recall the conversation."

If Hardin is able to show that McNamee made the statements about Clemens' getting big and his alleged previous steroid use for the first time in the testimony at this trial, McNamee is in for a rough ride as the cross-examination continues.

Hardin is in the third hour of what may be 8-10 hours of interrogation, and he is off to a terrific start. But McNamee has shown signs that he may be able to hold his own in the face of one of America's great trial lawyers. When Hardin packed a series of issues into a single question, McNamee looked at Hardin and calmly said, "Which of those three questions do you want me to answer first?"

Hardin responded, "Pick one."

The Hardin-McNamee battle will be dramatic, and it will be fun. But, more importantly, it is likely to be the turning point in the government's effort to persuade the jury that Clemens lied when he told the U.S. Congress that he had never used steroids and HGH.


There is no official ruling, and there is no mention of it in any form in any of the hundreds of pages of papers filed in the case of U.S. v. William Roger Clemens, No. 10-CR-223, but the word "mistrial" is a forbidden word.

In most trials involving criminal charges, both the prosecutors and the defense lawyers will emphasize their objections with a demand for a mistrial. It's a time-honored routine that allows the objecting lawyer to make his point and to preserve the issue for an appeal.

But it will never happen in the Clemens trial. As a direct result of the mistrial last July, the federal prosecutors will never make the request. It was their blunder that led to the fiasco in July, and they know that if there is a mistrial now, the case will be dropped.

Clemens' legal team is avoiding any demand for a mistrial for its own reasons.

After McNamee on at least four occasions violated a court ruling that barred any testimony that connected Andy Pettitte and his use of HGH to McNamee, it would be normal for Clemens' defense team to ask for a mistrial. But it did not happen.

"If I made a motion for a mistrial, Mr. Hardin would tackle me," said Clemens attorney Michael Attanasio to the judge, outside of the jury's presence. Attanasio handled the cross-examination of Pettitte. "We really like this jury. And we really like the way the trial is going."

It's a sure sign that Clemens' lawyers feel they are on the way to a triumph.