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Clemens' defense team capitalizes on prosecution mistakes to win perjury trial

Updated: June 18, 2012, 10:04 PM ET
By Lester Munson | ESPN.com

WASHINGTON -- Exactly seven weeks ago, as federal prosecutors began to present their evidence against Roger Clemens, they played three dozen video and audio excerpts of Clemens' testimony to a committee of the U.S. House of Representatives.

Watching monitors attached to their chairs, the jurors saw a close-up shot of Clemens, sitting ramrod straight in in the witness chair and telling the committee with a trace of a Texas accent, "Let me be clear. I have not done steroids or human growth hormone."

As the excerpts continued, it was as if Clemens was sitting with the jurors in the jury box, his face on their screens, his voice strong and unwavering, as he explained to them that the injections he received were not performance-enhancing drugs but were instead vitamin B-12, recommended by his mother, and lidocaine, a painkiller commonly used by elite athletes.

A few days after watching the Clemens excerpts, the jurors listened to Brian McNamee, slumped in the witness chair, his eyes darting nervously around the courtroom, declare that the injections were not vitamin B-12 and lidocaine but steroids and HGH.

In a withering, 15-hour cross-examination over three days, Clemens attorney Rusty Hardin confronted McNamee with a series of what Hardin called "lies, mistakes and bad memory," and, incredibly, caught McNamee "making something up" before the jury, something he had not said in five previous versions of his story of Clemens and PEDs.

In their verdict here on Monday, after less than 11 hours of deliberation, the jurors stated definitively that they believed what they saw and heard from Clemens in the excerpts and that they did not believe anything that McNamee told them.

The Congressional committee had reached the opposite conclusion after hearing from both men, refusing to believe Clemens and believing McNamee. But as attorney Hardin explained frequently during the 4 1/2 years since they testified, the real test of their veracity would come in a jury trial, a proceeding in which credibility would be tested in the crucible of cross-examination.

In the jury trial, Hardin and Clemens had the advantage. Clemens' version of the truth came in the video and audio excerpts, and federal prosecutors, who could not force Clemens to testify under the Fifth Amendment of the U.S. Constitution, had no opportunity for cross-examination.

McNamee's version was subject not only to Hardin's masterly cross-examination, it was contradicted on critical points by testimony from McNamee's estranged wife, Eileen, as a direct result of some impressive work by Hardin and his team of lawyers and investigators. Working quickly and effectively, the Hardin team pounced when the prosecutors announced that they would not be calling Eileen as a witness, obtaining her cooperation and an award of immunity for her from the U.S. Department of Justice.

Although the jury listened to 46 witnesses, it was the strong voice of Clemens in the excerpts, the destruction of Brian McNamee's veracity in cross-examination, and the powerful testimony from Eileen as a witness for Clemens that produced the jury's verdict after a minimal time of deliberation. Although the jurors refused to address the media after announcing their verdict, it is clear that they quickly reached a consensus on the statements of Clemens and the McNamees.

The jurors did exactly what Hardin asked them to do in his final argument -- watch and listen to Clemens as he testified on Capitol Hill and then compare it to what they saw and heard from Brian McNamee as he testified in their presence. When they compared their voices, their demeanors, and their appearances (and without any cross-examination of Clemens), they knew what their verdict must be.

In addition to the comparison of Clemens and McNamee, the jurors' decision was the result of these factors:

•  In another artful cross-examination, Clemens attorney Michael Attanasio led Andy Pettitte into an admission that his certainty about Clemens telling him that he had used HGH was only "about 50-50." It was a serious blow to the prosecutors who had been relying heavily on Pettitte's seemingly conclusive assertion that Clemens told him that Clemens had used HGH.

•  The prosecutors' presentation of McNamee's physical evidence (needles, cotton balls, ampoules, and gauze) suffered from mediocre, and occasionally embarrassing expert testimony. Attanasio was particularly effective in showing the jury how McNamee may have fabricated some of the evidence and most certainly contaminated it with waste from athletes.

•  The prosecutors failed to properly prepare McNamee for his testimony. McNamee was an effective witness before Congress, but he was sullen and occasionally angry when he testified before the jury. He seemed to be unprepared for Hardin's questions. With four prosecutors working on the case, there should have been more rehearsal and greater anticipation of what Hardin would ask McNamee.

•  In their final argument to the jury, the prosecution team left its finest advocate sitting on the bench. Instead of offering a rebuttal to the arguments from Hardin and Attanasio, lead prosecutor Steven Durham sat at the table as younger prosecutors made the government's summation.

Durham is a seasoned and talented prosecutor. His opening statement to the jury was one of the finest performances by any of the lawyers involved in the trial. There is no doubt that he would have added something to the government's final argument that the younger lawyers are not yet ready to produce. Omitting Durham from the lineup is an indefensible decision, and no one from the office of the U.S. Attorney for the District of Columbia will discuss it. The defense team will not discuss it, but it was obvious that they were surprised and relieved when they realized that Durham would not argue to the jury.

Despite remarkable investigative work by the federal agents who initiated the steroids probes nearly 10 years ago, the effort now ends with a whimper. The Clemens prosecution was to be the finale, the crown jewel of a massive effort to eliminate PEDs from the sports industry. Instead, it becomes a chance for Clemens to recapture some of his legacy and another triumph in the remarkable career of attorney Hardin.