WASHINGTON, D.C. -- Responding to a withering attack on their most important witness, federal prosecutors now suggest that they should be permitted to tell the jury in the Roger Clemens perjury trial that former trainer Brian McNamee offered evidence of steroid and HGH use against other players in addition to Clemens.
It's a clever response to a 13-hour cross-examination by Rusty Hardin, the lawyer who is leading the defense of Clemens against charges of obstruction of Congress and perjury. Hardin repeatedly suggested in his questions that McNamee's allegations against Clemens were motivated by McNamee's desire for "fame and fortune," suggesting that McNamee's sole purpose was to bring down the greatest pitcher of his generation and somehow get rich doing it.
The prosecutors want to show that McNamee's dealing in steroids and HGH was not limited to Clemens and that he offered similarly incriminating testimony against other players, evidence that led the other players to admit they had used steroids and HGH.
In a court motion filed here Friday, prosecutors say they are entitled to show the entire extent of McNamee's evidence as a way of proving it is "less probable that he is acting solely out of self-interest" and "bias" against Clemens. If they can show that McNamee's charges led other players to admit their use of drugs, then it would be less likely that he invented his story about Clemens for his own enrichment.
Hardin's argument that McNamee was out to get Clemens is based on the fact that no one else was charged as the result of McNamee's cooperation with government agents. He has emphasized the point throughout the trial in his effort to show that Clemens is the victim of McNamee's vendetta. The prosecutors' reply that the reason no one else was charged is that the other players were truthful about their use of performance-enhancing drugs. Clemens was the only player who lied about it, they suggest.
U.S. District Court Judge Reggie Walton indicated some interest in the prosecutors' suggestion during a hearing Friday outside the presence of the jury. After the Clemens legal team files a written response, Walton is likely to make a ruling on Monday.
If the prosecutors are successful in their maneuver, it would be an important breakthrough. McNamee admitted to numerous lies during Hardin's interrogation. His credibility is in shreds, and prosecutors need to find a way to restore some of it to their star witness.
If they can show the jury that McNamee was dealing to other players and that those players admitted their use, it would show the jury that McNamee was doing exactly what he said he was doing. Walton had barred the prosecution from any mention of McNamee's dealings to Chuck Knoblauch, Mike Stanton, David Justice and Glenallen Hill.
The government's suggestion is based on a higher court decision known as U.S. v. George Lindemann, a prosecution of a world-class equestrian who ordered the death of a show horse in an effort to collect on a large insurance policy.
In a defense remarkably similar to Hardin's defense of Clemens, Lindemann and his lawyers argued that the killer of the horse, Tommie "Sandman" Burns, was "biased" against Lindemann and fabricated his story in an effort to seek a lighter sentence for his killings of numerous other show horses. Lindemann's lawyers attacked Burns, suggesting that Burns needed Lindemann, the heir to a cell phone business fortune, as "the big fish" in a federal probe.
To counter the charge of bias, the prosecutors in the Lindemann case were permitted to show that Burns' evidence implicated 30 other equestrians who had entered pleas of guilty to charges of mail fraud and insurance fraud.
(Tangential but irresistible note: The first of the horses that Burns killed belonged to a woman in Ocala, Fla., named Lisa Druck. Druck later changed her name to Rielle Hunter, joined the John Edwards presidential campaign, and became the mother of Edwards' love child.)
Relying on the decision in the Lindemann case made by the U.S. Court of Appeals in Chicago in 1996, the prosecutors hope to persuade Walton that he must do what the trial judge did in the Lindemann prosecution -- allow them to show how many others McNamee implicated as a means of showing he was not biased and out to get only Clemens.
They should be allowed to show, Clemens prosecutors say in their brief, "evidence of McNamee's HGH-based interactions with other players and his cooperation" with federal agents and prosecutors in their probes of PED use.
The prosecutors desperately need a rally. If Walton follows the rule of the Lindemann precedent and gives the prosecutors a chance to show that McNamee implicated other players, it would be a first step toward the rally they need.