- Lester Munson, Legal Analyst
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WASHINGTON, D.C. -- Most trial lawyers would be happy when a cross-examination raises the possibility that an adverse witness is guilty of a lie or two.
In nearly seven hours of interrogation of former Roger Clemens trainer Brian McNamee on Thursday, Rusty Hardin went well beyond the possibility of a lie or two and extracted admissions from McNamee that he had lied to Clemens and other clients, to federal agents and prosecutors, to investigators for MLB investigator George Mitchell, to the media, to the ghostwriter of his unpublished autobiography, and to the grand jury that charged Clemens with obstruction of Congress and perjury.
Showing very little of the street charm that worked so well for him in his testimony before a committee of the U.S. House of Representatives in February 2008, McNamee sat hunched over in the witness chair, clearly unhappy, frequently pausing too long before he could come up with answers to even the simplest of Hardin's questions.
Confronted with powerful evidence from the thoroughly prepared Hardin, McNamee was forced to admit to lie after lie.
One example: After the publication of a Los Angeles Times story in October 2006 that described a federal steroids investigation involving McNamee and Clemens, McNamee sent e-mails to Clemens and to others assuring them that the story was bogus and of no concern. In the e-mail, McNamee claimed that he had talked directly with Jeff Novitzky, the federal agent who has led the probe of performance-enhancing drugs in sports.
McNamee went so far as to say that Novitzky told him he "felt sorry" for him and what he was going through as the result of the article, which included a reprise of McNamee's role in a sexual assault incident in St. Petersburg, Fla., in 2001.
It was, Hardin quickly proved, pure fiction. The McNamee-Novitzky telephone conversation never happened. McNamee had at that point never met Novitzky and wouldn't meet him until the following year when Novitzky confronted McNamee with his steroid purchases and persuaded him to become a government witness.
"It was a lie, wasn't it?" Hardin asked McNamee. With no apparent embarrassment, McNamee agreed that it was a lie.
Asked to explain the lie, McNamee said, "Self-preservation. I was defending my clients and me. I was trying to preserve my livelihood and the only job I had."
Hardin also forced McNamee to admit that his claim of gathering needles, syringes, gauze, cotton balls from Clemens' New York City apartment in 2001 was an evolving narrative that changed as years passed. When Hardin used the phrase "moving target" to describe the story, McNamee quickly agreed.
In testimony earlier this week, McNamee told the jury that he gathered the evidence to placate his wife Eileen, who repeatedly warned him that "he was going to go down" when investigators discovered what McNamee and Clemens were doing. When he brought the physical evidence, McNamee said on Tuesday, his wife stopped complaining.
Returning to the issue on Thursday afternoon, Hardin reviewed McNamee's story with him and reminded him of earlier versions of the story of the physical evidence. Responding to a question from Hardin about one of those earlier versions, McNamee said he was worried that Clemens would not support him "if things went wrong" and he needed the evidence to protect himself.
Then, in a deft bit of questioning, Hardin asked McNamee when he decided to add his wife to his story of gathering and keeping the physical evidence. "I did it for this trial," McNamee admitted, again without a trace of uncertainty or embarrassment. "I was trying to keep my wife out of it and protect my family."
Some of McNamee's lies were, as he asserted, for "self-preservation," and were designed to try to control the escalating federal investigation and then the Mitchell investigation. But others had no apparent rationale.
McNamee testified that after he injected Clemens' wife Debbie with HGH and showed her how to inject herself, McNamee told people that the HGH was to help Debbie prepare for a photo shoot with Sports Illustrated. The shoot resulted in a photo in a swimsuit issue of the magazine that featured a bikini-clad Debbie standing over Roger in New York's Central Park.
With bits and pieces of evidence that his team of lawyers and investigators had gathered in their massive preparations for the trial, Hardin showed that the HGH injection came long after the photo shoot in the summer of 2002 that led to the photo in the SI issue published in February 2003.
"I apologize to the court," was the best McNamee could say when he realized that his story had been destroyed.
There is little doubt to me that Hardin has proved that McNamee is a serial liar and a generically reprehensible individual. And there is more to come as the cross-examination continues on Friday.
Hardin spent considerable time establishing a detailed and specific timeline from McNamee for the steroid shot that McNamee said was the first in a series of at least 30 between 1998 and 2001. The shot occurred, McNamee says, in a SkyDome hotel apartment where Clemens lived during his season with the Toronto Blue Jays.
Hardin invested so much time and effort into the specifics of the first claimed injection that you wonder whether he has some information that will make McNamee's story of the first shot completely impossible. Was Clemens not living in the apartment McNamee has described? If Hardin and his investigators have a SkyDome surprise for federal prosecutors on Friday, it will be a dramatic turning point in the trial.
But, even with the admitted lies, will Hardin be able to persuade the jury that McNamee's story of the use of steroids and HGH is a total fabrication? He has certainly cast doubt on McNamee and his veracity, but is it the kind of doubt that becomes "reasonable doubt" and will produce a not guilty verdict for Clemens?
A majority of jurors were with Hardin every step of the way on Thursday, and they'll be with him on Friday when he concludes his cross-examination. Time will tell whether they will be with Hardin and Clemens as they deliberate their verdict.
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