- Lester Munson, Legal Analyst
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WASHINGTON -- In a matter of a few hours Tuesday, the jury in the Roger Clemens perjury trial heard dramatically divergent descriptions of the two principal characters in the courtroom drama -- one on the way up and the other on the way down.
First, they listened to a former client of Clemens' trainer, Brian McNamee, describe McNamee's escalating agony and frustration as his relationship with Clemens was falling apart. Then they heard high school and college teammates describe Clemens' work ethic and his ascent from a "very average" high school pitcher to a hard thrower who led the University of Texas to a national championship.
The contrasting narratives will be the centerpiece in the jury's deliberations and the basis for its ultimate decision on whether Clemens lied to the U.S. Congress about his use of performance-enhancing drugs. The jurors must decide whether to believe it was steroids provided and injected by McNamee that led to Clemens' success in his final years in Major League Baseball, or whether it was Clemens' remarkable work ethic that produced 24 years of superior pitching and seven Cy Young awards. They must choose between McNamee and his walk through the dark side of baseball's steroid era, or Clemens and a dramatic retelling of his remarkable career produced and directed by master trial lawyer Rusty Hardin.
The picture of McNamee's problems with Clemens came from Anthony Corso, a former Wall Street financier who hired McNamee as his personal trainer in 2002 and worked with him until late 2006. As they worked together, Corso said, McNamee told Corso of his difficulties with Clemens.
In testimony highly favorable to prosecutors, Corso told the jury that McNamee told Corso about Clemens' use of HGH. But, under Hardin's cross-examination, Corso also described McNamee's complaints about the way Clemens treated McNamee.
According to Corso, McNamee was unhappy about several issues -- Clemens' payments for McNamee's work were too low and too late; scheduling training sessions in Houston was difficult and took McNamee away from his family; Clemens gave McNamee a Hummer and then to McNamee's surprise expected McNamee to pay for it; Clemens somehow caused McNamee to be bumped from a flight; Clemens forced McNamee to stay in a pool house at the Clemens compound in Houston and not in the main house; Clemens refused to permit McNamee to use Clemens' name to help promote a vitamin company that had hired McNamee; and, Clemens would not help with a birthday party for one of McNamee's children.
The situation was "deteriorating" and increasingly "contentious," Corso testified, and McNamee's complaints were more and more frequent.
Although the account of Clemens' use of HGH was critical to the government's case against Clemens, his description of McNamee's complaints added to an already well-established impression that McNamee is a reprehensible guy who cannot be trusted. During his own testimony, McNamee was forced to admit numerous lies and exaggerations.
Hardin, one of America's greatest trial lawyers, will use Corso's account of McNamee's complaints to argue that McNamee was seeking revenge for what Clemens did to him over the years and seized his chance when federal agents and Sen. George Mitchell came to ask McNamee about his work with Clemens.
After the government announced that it had concluded its presentation of evidence, Hardin was ready to show the jury a different Clemens. As Hardin presented his first two witnesses, the change in the atmosphere of the courtroom was instant. It marked a complete switch from the somber and ponderous parade of government witnesses to a happy and occasionally entertaining scene as Hardin presented two members of the Texas jockocracy who began to tell the story of Clemens' success and the work that was the basis for it.
Todd Howey, a former minor league player in the Philadelphia Phillies' farm system and now the athletic director of schools in Midland, Texas, described the disbelief that he and his high school teammates felt as they watched Clemens work out late into the evenings. "We didn't think he was that good," Howey told the jury. "We never expected him to turn out the way he did, but he did what he said he would do."
Prosecutor Daniel Butler made objections to Howey's testimony, trying to stop the momentum that Hardin was building, but it didn't work. With Clemens smiling as he sat at the trial table (a first in the 24 days of the trial), Hardin and Howey captured the jury with their inspiring success story.
Then it was Mike Capel, who played with Clemens at Texas and went on to a 10-year MLB career with the Chicago Cubs, Milwaukee Brewers and Houston Astros. Responding to Hardin's questions, Capel told the jury that he never knew anyone who worked as hard or who took better care of his body as Clemens.
Howey and Capel and Hardin are guys you want to hang out with. They are charming and funny and have stories to tell. McNamee is not a guy you want to hang out with. Hardin is the kind of lawyer who can make the hang-out factor into a courtroom victory.
As Hardin continues to present his case for Clemens over the next two weeks, he will continue to try to persuade the jury that Clemens' success was the result of his documented work ethic and had nothing to do with steroids. It's a joyous story and will have considerable appeal to the jurors.
This is the story that Hardin and Clemens have been waiting to tell since the release of the Mitchell report in December 2007.
Even with Hardin's artistry and entertaining stories from good ol' boys from Texas, there is no guarantee that it will work. For all of McNamee's misconduct and misrepresentations, there remains the ring of truth of in his contention that he helped Clemens through a midcareer crisis with steroids and HGH.
McNamee may have been on the way down. Clemens was certainly on the way up. The jury will decide the truth of these divergent stories.