Monday, April 23, 2012
Clemens trial off to brilliant start
By Lester Munson
WASHINGTON, D.C. -- One thing is obvious in the retrial of Roger Clemens on charges that he lied about his use of performance-enhancing drugs: Both sides worked hard on the case in the nine months since the mistrial, and it shows.
The lawyers' arguments are sharper; their investigations have uncovered new details. And they're all performing at levels they never reached in their first effort.
Eloquently and forcefully, lead prosecutor Steve Durham told the jury in his opening statement Monday afternoon that "all Mr. Clemens had to do was tell the truth" to Congress members, but instead he "wove a tangled web of deceit, betrayal and hurt" when he was accused of using performance-enhancing drugs in the Mitchell report.
Durham's presentation was superior to his offering in the first trial as he established "the important work" of the Congressional committee that investigated steroids in baseball and its concern that it would spread to young athletes. He noted that Clemens would have been a part of the effort if he "had the courage to come in and admit that he made some mistakes." But, instead, Durham said, Clemens initiated a campaign of "disinformation," in which one lie led to another lie "until he lost track of what he was saying."
Among the impressive pieces that Durham added to his opening statement on Monday was a detailed description of Clemens despondent in the New York Yankees' locker room after he could not make it through the third inning of a playoff game against the Boston Red Sox in 1999. It was the end of a terrible season, Durham said, and when Yankees GM Brian Cashman came to the locker room to comfort him, Clemens said, "I want McNamee."
Clemens was, Durham explained, demanding Brian McNamee, the trainer who now says he helped Clemens with steroids and HGH in two earlier seasons in Toronto and again in New York. Cashman will testify in the trial, Durham said, that Cashman then created a job for McNamee to allow McNamee to work Clemens back into winning form. It was a turning point in the 10 years of collaboration between Clemens and McNamee that now result in the prosecution of Clemens.
Durham also added a series of dramatic photos to his opening statement, including one of Clemens and an 11-year-old boy in what appears to be Jose Canseco's pool. It's an important addition to the government's evidence against Clemens, who testified under oath that he had not attended the pool party shown in the picture. Clemens' statement on the pool party is one of 15 specific statements to the U.S. House of Representatives that the prosecutors say are false. If the jury finds Clemens guilty on any one of the 15 statements, he will be convicted of obstruction of Congress, a charge that could result in 15 to 21 years in the penitentiary.
Like Durham and his team of prosecutors and agents, the Clemens lawyers, led by Rusty Hardin, also spent the nine-month hiatus digging deeper into various rumors and allegations in the life of McNamee. Assistant U.S. Attorney Daniel Butler suggested in an argument outside the presence of the jury that McNamee was fired from his Yankees job because he "could not get along with other staff members." Hardin disagreed, arguing that Cashman fired McNamee, who was "spiraling down with a DUI, a pattern of substance abuse, and an incident in Seattle when he was incoherent and passed out and had to be taken to his room."
In addition, Hardin told U.S. District Judge Reggie Walton, McNamee lied to a grand jury about a rape investigation in 2001. "He was trying to have sex with a naked woman in a pool after he had given her a date-rape drug, and he told the grand jury that he was trying to rescue her." In full concert pitch, Hardin told the judge that McNamee tried to persuade a Yankees security officer to destroy the glass that had a residue of the drug.
Walton, clearly enjoying the battle between the two well-prepared teams of lawyers, told them he needed some time to think about their new evidence on McNamee.
It wasn't as dramatic as Durham's opening statement (Hardin will have his chance on Tuesday morning), but Hardin used the nine months to execute a dazzling flip-flop that will help him reduce the impact of the expected testimony from Andy Pettitte, Clemens' former teammate and workout partner.
Pettitte, who is the government's best witness, will testify that Clemens admitted to him that he was using HGH. He will also testify that he used HGH twice himself.
In the first trial, Hardin had agreed that Pettitte could testify that he obtained HGH from McNamee in an effort to enhance his healing from an elbow injury. It was an agreement beneficial to the government, which could then argue that if Pettitte obtained HGH from McNamee, then it was likely that Clemens did the same things.
To the surprise of the federal prosecutors, Hardin reversed course on the issue in a brief he filed last week. On Monday, he argued that the source of the drug was irrelevant. And also to prosecutors' surprise, Walton agreed with Hardin and barred any mention of McNamee's role in Pettitte's use of HGH.
A brilliant opening statement, an impressive investigation of McNamee, and a dazzling flip-flop. And this, after four days of jury selection, was only the first day of the second trial.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.