- Lester Munson, Legal Analyst
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WASHINGTON -- Five voices filled Courtroom 16 on the sixth floor of the federal courthouse here in the final hours of the Roger Clemens perjury trial. And one important voice was missing.
Four were the voices of the lawyers who have been battling for 10 weeks over things like the credibility of Clemens accuser Brian McNamee, the validity of physical evidence that McNamee claims he gathered after injecting Clemens with steroids, and the memory of Andy Pettitte who may or may not have heard Clemens admit to use of HGH.
The prosecutors, Gilberto Guerrero Jr., and Courtney Saleski, were effective and comprehensive as they explained what they viewed as the strengths of their evidence.
Guerrero, who had played a minimal speaking role in the trial until Tuesday, was surprisingly persuasive. Anticipating the defense attack on McNamee's veracity, he told the jury that "Mr. Clemens picked Mr. McNamee, not the government. Mr. Clemens employed Mr. McNamee, not the government."
Clemens was using McNamee, Guerrero argued, as his source of performance-enhancing drugs and "to inject him and to keep his mouth shut." When Clemens no longer needed McNamee, the prosecutor suggested, he "tossed him by the wayside."
Hoping to shift some of the responsibility for McNamee's admitted lies and dubious maneuvers away from the federal prosecutors and toward Clemens, Guerrero reminded the jurors that Clemens had employed McNamee for nearly 10 years. The argument was recognition that Clemens' lawyers had shredded McNamee's credibility in cross-examination and with testimony from McNamee's estranged wife, Eileen, who contradicted McNamee on numerous significant issues. Guerrero was suggesting to the jury that it was Clemens who invited McNamee into his life and into his home, and it was Clemens who was responsible for McNamee's role in the dispute.
Again anticipating a defense argument, Guerrero ridiculed the contention that McNamee had fabricated the physical evidence -- the cotton balls and the needles that McNamee says he used to inject Clemens. "If he were to fabricate the physical evidence, he would have done something better," Guerrero suggested.
In an impressive effort to support McNamee's testimony, Guerrero listed for the jury various forms of corroboration of McNamee's claims, including the authenticity of a beer can that was, according to a Miller Brewing expert, available the year McNamee said he started using it as storage for the needles and the cotton balls.
The second voice for the prosecution was Saleski, who, like Guerrero, had played a minimal role in the trial until she stood before the jury to give the final hour of the government's final argument.
Saleski had a tough assignment. She was supposed to find a way to explain away the testimony of Eileen McNamee, the most effective witness for the Clemens defense.
Brian McNamee claimed that he gathered the physical evidence because Eileen had been nagging him about the legality of his activities with Clemens and urging him to do something to protect himself. None of it was true, Eileen told the jury, in a demure and compelling way.
Saleski managed to suggest that Eileen was "all about self-protection" and did what she had to do to protect her family. Instead of tossing out the old needles, Saleski said, she left the materials in her home because "this was Eileen the protector."
It may appear to be a weak explanation for Eileen's testimony, but her testimony was so powerful that there may not have been anything else that Saleski could do.
The third voice in the courtroom was that of Roger Clemens. Guerrero replayed video and audio of Clemens' testimony before a committee of the U.S. House of Representatives, the testimony that resulted in his indictment for obstruction of Congress and perjury.
It was a reprise of a government presentation early in the trial. In a forthright and conclusive voice, Clemens denies use of PEDs and describes various events, including McNamee's injection of his wife, Debbie, with HGH. Guerrero explained the inconsistencies between what Clemens said to the committee and the evidence the Clemens team presented during the trial, including switching the year of the injection of Debbie from 2003 to 2000.
Guerrero was clearly hoping that the jury would replay the tape in its deliberations and conclude that there was something false in what Clemens said.
The fourth and fifth voices in the courtroom were defense attorneys Michael Attanasio and Rusty Hardin, who were the courtroom voices of the defense for the entire trial and were quick on Tuesday to respond to use of Clemens' voice with explanations that the tapes did not include his entire testimony and omitted material that established his truthfulness.
Attanasio raised the issue the prosecution's burden of proof beyond a "reasonable doubt" brilliantly in the opening riffs of his argument. Noting that the prosecution had not mentioned this basic concept of American criminal law ("I was not surprised," he said), he told the jury Judge Reggie Walton would tell them that the law was that a reasonable doubt was something that would cause you "to hesitate in the graver and more important matters of life."
He suggested that no one would be willing to rely on McNamee in "the graver and more important matters of life."
Hardin demonstrated the style and technique that has made him one of American's greatest trial lawyers, his voice rising from pianissimo to triple forte and back down again, as he reminded the jury of the Clemens narrative of hard work and incredible success. "We should not be prosecuting Roger Clemens, we should be rewarding him," Hardin concluded.
The missing voice in the courtroom was Steven Durham, the lead prosecutor. Durham, an experienced and articulate career prosecutor, had been the principal voice of the prosecution throughout the trial and in all of the pre-trial skirmishing as well as in the mistrial in July 2011.
He sat at the table on Tuesday and watched as less experienced prosecutors made the government's final summations to the jury.
In the early days of the trial, Durham gave the government's opening statement. It was an impressive performance both in style and in substance. Neither of the younger prosecutors who presented the government's arguments on Tuesday reached the level Durham reached in his opening statement.
Why was Durham left on the bench in what could be a pivotal moment of the case?
Matthew Jones, a spokesman for the office of the U.S. Attorney here, refused to discuss the situation. "We are bound by the judge's order that prevents any comment on the case. We can comment on it after the case is concluded," he told ESPN.com.
Against a legal team led by the estimable Hardin, it is difficult to understand why the government would refrain from using its best orator.
Five voices filled Courtroom 16 on the sixth floor of the federal courthouse here in the final hours of the Roger Clemens perjury trial. And one important voice was missing.