Clemens prosecutors dig deep
Prosecution puts rarely used evidence rule in play and may win big with maneuver
WASHINGTON -- Desperately seeking something that would support their star witness after a brutal cross-examination, the federal prosecutors in the Roger Clemens trial are attempting a rarely used maneuver. And it looks like it might work.
Prosecutors are seeking permission to bring forth witnesses whose testimony would support former Clemens trainer Brian McNamee's assertions that he injected Clemens with HGH and that he collected used needles, vials and cotton pads to placate his wife. Although U.S. District Court Judge Reggie Walton adjourned the trial on Wednesday without a final ruling on the prosecutors' initiative, he indicated that he would rule in their favor.
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In the course of his cross-examination of McNamee, lead Clemens attorney Rusty Hardin suggested numerous times that McNamee "made up" one story after another in efforts to achieve "fame and fortune" by bringing down Clemens and to avoid prosecution himself by telling federal agents and prosecutors what they wanted to hear. Hardin showed in his questions how McNamee's story "evolved" as he told it again and again to the agents and prosecutors, to a congressional committee, to the federal grand jury that charged Clemens with perjury, and most recently to the trial jury.
If McNamee's stories of HGH use and gathering physical evidence were evolving and changing each time he told them, Hardin suggested in his questions and his gestures, then none of it could be true, and his motives were suspect.
The prosecutors, in a clever and resourceful move, want to turn Hardin's "evolving story" theme against Hardin and Clemens by showing that McNamee was telling the same story before he had any reason to fabricate anything. They want to show that what Hardin portrayed as a "recent fabrications," the final step in the evolving story, are not recent but instead are things that McNamee had said earlier when things were going well with Clemens.
The government is relying on a federal rule of evidence that allows "prior consistent statements" to be presented to the jury when, in cross-examination, the witness was attacked as offering "recent fabrication." The obscure rule is known as No. 801(d)(1)(B), and as Walton indicated on Wednesday, it seems to apply. If this maneuver works and Clemens is convicted, it will be a most important use of the rule, and prosecutors should be awarded trophies etched with "801(d)(1)(B)."
To show that McNamee was consistent in his accounts of HGH use and collecting physical evidence, the prosecutors would present former player David Segui, who played for seven MLB teams, and Anthony Corso, a former McNamee client who works on Wall Street.
They would testify that McNamee told them as early as 2002 that both Clemens and Andy Pettitte used HGH. They would also testify that McNamee told them as early as 2001 that he saved the physical evidence to placate his wife. Both assertions would predate McNamee's first visit with federal agents and would predate any incentive he had to bring down Clemens or to tell government agents what they wanted to hear.
Although Walton indicated that he would allow the prosecutors to present Segui and Corso and their confirmations of McNamee's story, he also indicated that he would allow Hardin to argue to the jury that McNamee was preparing to blackmail Clemens when he collected the physical evidence.
Hardin had raised the blackmail issue last week only to have Walton suggest that there was no evidence to support it. But in the colloquy on Wednesday afternoon, the judge reversed himself. It will give Hardin a powerful theme in his defense of Clemens. Hardin promised in his opening statement that he would present experts who would show how easy it would be for McNamee to "create" the physical evidence.
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