- Lester Munson, Legal Analyst
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WASHINGTON -- On three occasions during his cross-examination of star prosecution witness Brian McNamee last month, defense attorney Rusty Hardin scoffed, "You just made that up, didn't you?"
It was a dramatic bit of trial rhetoric, but it was risky. Even in the hands of a master trial lawyer like Hardin, it is the kind of personal attack that can backfire if any juror was beginning to believe McNamee's account of injecting Roger Clemens with steroids and HGH.
On Wednesday afternoon, Hardin moved his courtroom flourish a significant step toward evidentiary reality when he offered Eileen McNamee, Brian's estranged wife, as a witness. Listening to this demure, 42-year-old first-grade teacher and mother of three testify, it was difficult to avoid the conclusion that Hardin was right -- Brian did make things up.
It's possible that federal prosecutor Courtney Saleski will be able to shake Eileen's testimony in cross-examination on Thursday, but it is not likely. In contrast to Brian's testimony, Eileen's testimony was calm, it was clear, and it was understated. It had the unmistakable ring of truth.
Brian told the jury two weeks ago that Eileen was the reason that he collected used needles, cotton balls, vials and ampoules that he had used on Clemens and other ballplayers. The trove of physical evidence has become the centerpiece of the prosecution's case. For the prosecutors to convict Clemens of perjury and obstruction of Congress, the jurors must be unanimous in their belief of Brian's story of the gathering and the preservation of this evidence.
Offering details that were occasionally cinematic as he told his story, Brian testified that the collection process began when Eileen began to warn him that helping Clemens with steroids would lead to trouble.
Looking directly at the jurors, Brian described a scene in which Eileen confronted him with the illegality of what he was doing and screamed at him, "You're going down. You're going down. You're going down."
As if the threat in triplicate were not enough to impress the jury, McNamee added more. Eileen, he said, told him, "There will be trouble, and you will be the fall guy." To emphasize his point, McNamee told the jury that he had taken falls for others in previous situations, and Eileen did not want it to happen again.
In his efforts to maintain some level of tranquility at home, Brian told the jury, he gathered the materials from Clemens' apartment in New York after injecting Clemens with steroids.
When he arrived at home on Long Island, Brian said, he laid out the material in the couple's kitchen to allow Eileen to see what he had accomplished. In his description of the scene, Brian included Eileen's supposed suggestion that he store some of the materials in a Ziploc bag. Then, according to Brian, the couple worked together to store the material in a FedEx box that Brian placed in a basement cedar closet.
With its detail and its plausible scenes from a marriage, Brian's story seemed to establish a basis for relying on the evidence he had gathered. It also seemed to be sound tactically. The only person who could contradict Brian's account was Eileen, and she was caught in a complex jumble of divorce litigation and needed immunity from the government before she could testify.
Brian and the prosecutors may have underestimated the Clemens legal team and its ability to sort through the jumble and bring Eileen into court.
But, lo and behold, there was Eileen in court on Wednesday denying and contradicting every step of Brian's story of collection and preservation of the evidence.
She never complained about Brian's work with Clemens, she told the jury. She was happy with the situation because Brian was "being paid" and she was "at home with my children."
Brian never showed her the materials he collected, she said, adding that she discovered them when water was leaking into the basement closet during a hurricane and she noticed the FedEx box on a shelf and discovered needles and vials.
A few days later, she asked Brian about the box. "He told me it was none of my concern and refused to discuss it," she said.
Brian has insisted that he preserved some of the materials by shoving them into a crumpled Miller Lite can. Eileen, however, testified that she found a Bud Light can that was not crumpled, shook it, and heard the unmistakable sounds of needles rattling.
Hardin asked her how she could be sure it was the sound of needles, and Eileen responded that she and Brian placed used needles in cans after they had injected their diabetic son with insulin.
Is the crumpled Miller Lite can a piece of fabricated evidence that Brian added to the trove after Eileen discovered it? Are there two cans of needles? Either way, Brian's story does not work.
Eileen's testimony may be the most powerful of the trial. For Clemens to obtain a not guilty verdict from the jury, he and Hardin need only persuade the jurors that there is "reasonable doubt" about the government's assertion that Clemens lied numerous times in his testimony before a committee of the U.S. House of Representatives.
If the jury concludes that Eileen is as truthful as she appears to be, the Clemens legal team has moved beyond the realm of reasonable doubt and has raised the serious possibility that the government has presented false testimony in an effort to win a perjury case.
The trial may not conclude for another week or two. But when the jury begins its deliberations, it may well be that the trial actually concluded with the testimony of Eileen McNamee. Listening to her, you start to think that Brian McNamee "just made that up."
36mTristan H. Cockcroft