Championship effort in Clemens trial
Detailed questioning of DNA expert shows how seriously both sides taking case
WASHINGTON, D.C. -- There is no World Series for crime fighters and defense lawyers, but if there were, it would look a lot like the Roger Clemens perjury trial. It has featured both brilliant plays and embarrassing errors, and it's heading for a seventh game that will likely go into extra innings.
The team representing the U.S. government includes five prosecutors, at least three federal agents and a couple of techies. Its leader is Steven Durham, a seasoned and talented lawyer. The Clemens defense team includes another five lawyers, three top-of-the-line investigators, a pair of techies and a group of paralegals and interns. Its leader is Rusty Hardin, one of America's greatest trial lawyers.
These formidable litigation teams spent nearly six hours on Thursday and Friday battling over two cotton balls and a used syringe. It's typical of the extensive and endless efforts from both sides that have added significantly to the length and the expense of the trial that will determine whether Clemens lied to the U.S. Congress when he denied use of performance-enhancing drugs.
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The issue on Friday was the presence of Clemens' DNA on the cotton balls and the syringe. In a garden-variety trial of a criminal case involving DNA on three objects, the questioning of the DNA witness might have consumed no more than 90 minutes, or at the long end, two hours.
But with the extensive preparations that both teams have made for this trial, both sides have asked every possible question, have raised every possible legal issue, and have sought every advantage in every answer from every witness.
In the battle over the DNA evidence, for example, Assistant U.S. Attorney Courtney Saleski took DNA expert Alan Keel through every detail of the laboratory processing of 11 needles, gauze pads, tissues and vials that former Clemens trainer Brian McNamee claims he collected while he was injecting Clemens with steroids and HGH. Again and again, Saleski asked for each step of the procedure, never once suggesting that the procedure for one item was exactly the same as the procedure for the previous item.
Saleski demonstrated impressive mastery of DNA arcana, and she was trying to anticipate what the Clemens team would ask the expert in cross-examination.
When it was time for Michael Attanasio to cross-examine the expert, he returned the favor. He raised the possibilities of commingling and contamination of evidence, confronted the witness with tests he did not do, asked whether the witness was being paid by the hour, inquired about the possible transfer of evidence from one item to another while confined in a beer can where McNamee stashed them, focused on the expert's college major of zoology, and raised the possibility of saliva in the beer can.
The defense lawyer's finest moment came when he confronted Keel with the fact that Keel's calculations show that there was a 1-in-450 chance that someone else had the same DNA that Keel found on the needle and attributed to Clemens. It was a marked contrast to the numbers for one of the cotton balls that showed a 1-in-1.8 quintillion chance that DNA from someone other than Clemens was on the cotton ball.
Although neither Keel nor Attanasio made the calculation, it means that there are as many as 6,667 people in the United States whose DNA would match the DNA that Keel found on the needle.
Saleski's finest moment came in her questions responding to Attanasio's cross-examination, when she said to the expert: "I want to ask you some questions about pus." She then did exactly what she said she would do, asking him a series of six questions about the pus that he found on one of the cotton balls that he attributed to Clemens.
As the two teams have battled over every detail in the case, U.S. District Court Judge Reggie Walton has expressed his frustration over the extensive questioning of witnesses, frequently interrupting the questions and asking the lawyers to "move on to something important." He told both sides that their questions to any single witness could not go beyond 90 minutes, but both sides violated his guidance with their interrogations of Keel, without a word of criticism from the judge.
The battle between these two power-packed lineups will continue for another couple of weeks. The prosecutors are nearing the end of their presentation of evidence, and then the Clemens team will have its turn at bat.
Hardin has promised to offer witnesses who will demonstrate that Clemens' physique did not change during the time McNamee claims to have injected him with PEDs, that it would be easy for McNamee to have fabricated the physical evidence, that Clemens' 24-year career was consistent and showed no improvement as the result of steroids, and that the government has spent an inordinate amount of time and money on its prosecution of Clemens.
It's the kind of defense that Hardin can present with a client like Clemens who is willing to invest a good portion of his wealth to try to preserve a piece of his legacy.
Although these lawyers have all been involved in other big cases, there is little doubt that both sides are viewing this trial as a career event. Both are carefully attending to every detail. Both are working overtime, filing papers late in the evening and in the early morning hours. And, like teams in a World Series, both are looking for anything that will give them a victory.
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