- Lester Munson, Legal Analyst
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WASHINGTON -- On Wednesday, it will be exactly 52 months since Roger Clemens told a committee of the U.S. House of Representatives that he had never used performance-enhancing drugs. Also Wednesday, a federal jury will be in deliberations that will decide whether Clemens lied to the committee and obstructed its investigation into the use of PEDs in baseball.
The jury's deliberations will be the final act in a massive government effort that began when both the Democratic and Republican leaders of the House of Representatives committee asked the U.S. Department of Justice to investigate Clemens' testimony.
Will the jurors agree with the politicians who were suspicious of Clemens' claims? Will they believe the assertions of former Clemens trainer Brian McNamee, who claims that he facilitated Clemens' use of steroids and HGH and gave him as many as 30 injections? If the jurors agree with the politicians and believe McNamee, their verdict will vindicate the committee's conclusions and the government's enormous effort.
But if the jurors reject McNamee's claims and believe the stories they heard from his estranged wife, Eileen, and former ballplayers Phil Garner, Charlie O'Brien and Mike Boddicker, they will hand the prosecutors a humiliating defeat, and someone somewhere in the Department of Justice will have some explaining to do.
Agents from the FBI, the IRS and the DEA have devoted countless hours to the pursuit of Clemens, digging into every aspect of his life. They gathered thousands of pages of documents, and they went all over the United States interviewing anyone who knew anything about Clemens.
Here is a list of the documents they examined:
• 15,732 pages of Clemens family bank records from J.P. Morgan Chase.
• 1,139 pages of records from American Express credit cards.
• More than 300 pages of medical records from MLB teams for which Clemens played.
• Hundreds of pages of phone records from nine companies.
In addition to reviewing the documents, a group of 93 agents interviewed 179 individuals in 68 locations and produced 235 reports of their interviews. The Clemens legal team prepared a map that shows the extent of the agents' work. In many of the interviews, the agents were accompanied either in person or on the phone by assistant U.S. attorneys Steven Durham and Daniel Butler, who led the government trial team.
The investigation led to a six-count indictment and to the trial. The trial will begin its 33rd day on Tuesday and has featured 46 witnesses.
Clemens and his lead attorney, Rusty Hardin of Houston, one of American's great trial lawyers, have matched the government effort with a comprehensive and specific attack on each of the government's allegations against Clemens. Hardin not only subjected McNamee to a withering, 15-hour cross examination, he seized the initiative when the government finished presenting its evidence. He produced 22 witnesses who continued the attack on McNamee and the physical evidence that McNamee claimed he had collected after injecting Clemens.
It was an effort that is rarely seen in a federal prosecution. Facing the resources of the federal government, most accused individuals and their lawyers cannot afford the battle that Clemens and Hardin have waged.
As the trial reached its final stages on Monday, it was easily apparent that Hardin and his team of lawyers, investigators and paralegals were relishing the successes of their witnesses and looking forward to final arguments on Tuesday and the jury's verdict. None of them can talk with the media as the result of a gag order, but their attitudes and their demeanors made it obvious that they could, as someone once said, "smell the meat a-cooking."
Subtly and repeatedly during the trial, both Hardin and Michael Attanasio, another Clemens lawyer, have exploited every opportunity to highlight the magnitude of the federal investigation and prosecution of Clemens. The map leads to just one of many questions and comments that, they hope, will cause the jury to ask why the government invested so much in a case against a baseball player.
Hardin will emphasize the point in this final argument to the jury, and Attanasio has frequently asked agents and other witnesses about numerous agents' trips to New York City and to Houston to interview witnesses. John Longmire, the FBI case agent who has been at the prosecution table throughout the trial, admitted that there were 40 interviews in Houston and another 32 in New
It will be up to lead prosecutor Durham to find a way in his final argument to counteract what Hardin has accomplished. It will not be easy, but Durham is a seasoned and articulate prosecutor. He has two hours to repair the damage to McNamee's veracity and to establish the integrity of McNamee's trove of needles, ampoules and cotton balls. If he can persuade the jury that Clemens was lying in any one of the 13 specific statements charged in the indictment, the government's effort will be vindicated.
As persuasive as Durham can be, he faces a serious challenge. Hardin shredded the credibility of Durham's most important witness in cross-examination. Then, with the testimony of Eileen McNamee, the most persuasive witness in the entire trial, Hardin seemed to have ended all doubt about the outcome. Fifty-two months after the House committee concluded that Clemens was lying, a jury in a courthouse a few blocks away is likely to conclude that it was McNamee who was lying.
15hPat McManamon and Jeremy Fowler