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Tuesday, April 24, 2012
Clemens defense begins with flourish

By Lester Munson
ESPN.com

WASHINGTON -- With a bit of a smirk, attorney Rusty Hardin in his opening statement on Tuesday accused a federal prosecutor of throwing at Roger Clemens.

In his effort to convict Clemens of lying to the U.S. Congress about performance-enhancing drugs, Hardin said, lead prosecutor Steven Durham in his earlier opening statement "threw words at Roger -- deceit and betrayal and hypocrisy." Sitting a few feet from Hardin and Durham, Clemens smiled at the notion of anyone throwing at him.

It was the opening salvo in 75-minute presentation from Hardin, one of the nation's great trial lawyers, in which he demonstrated the flourish and the flash that have worked miracles for other clients in similarly desperate situations. Hardin used every square inch of the massive courtroom, fulminating in rage from a distant corner over the "garbage" that former trainer Brian McNamee says are syringes and cotton balls he used on Clemens to making an earnest and pianissimo plea inches from the jury to "let his man clear his name."

Hardin outlined what will be a massive effort by his team of lawyers and investigators that will establish four things that he believes will exonerate Clemens:

•  It was Clemens' work habits, not performance-enhancing drugs, that produced seven Cy Young Awards in a 24-year career that was consistent and never showed any bump from drug use.

•  The federal government has devoted huge resources in an unsuccessful effort to find anything that corroborates McNamee's allegations.

•  McNamee is interested only in "making money" from the celebrity status he gained when the Mitchell report "sprung him on the national scene."

•  Government prosecutors offer "only half of the story," and when jurors hear the other half, they will know that Clemens is not guilty.

Pushing the limits on the rules that govern opening statements, Hardin prompted four objections from prosecutor Durham, a highly unusual number in a trial that matches lawyers as skilled and as experienced as Hardin and Durham.

To show the arc of Clemens' career in baseball, Hardin will present the pitcher's junior college coach to show how hard Clemens worked before he had any success.

"He was tall and pudgy," Hardin told the jury about Clemens back then. "I only say that in a public place like this courtroom where Roger can't do anything. But that is what he was. And he made himself into something." The junior college coach, Wayne Graham, will testify, according to Hardin, that Clemens was the hardest-working athlete he ever coached.

"On Friday nights, while his friends were doing what kids do on Friday nights, Roger was running from foul pole to foul pole to make himself stronger," Hardin told the jury. "He'd be there at 9:30 in the evening working and working."

Hardin also told the jury that it would hear from other coaches and high school teammates who would describe Clemens' rigorous work habits.

"He made himself into something," Hardin said.

Using photos of Clemens at four stages of his career and an impressive graphic timeline, Hardin told the jury that McNamee's allegations cover only four years and that Clemens' performances as a pitcher remained the same "before McNamee, during McNamee, and after McNamee." Hardin emphasized that Clemens won his seventh Cy Young Award three years after McNamee's final claim of injecting drugs.

Knowing that McNamee is critical to the success of their prosecution, Hardin said, federal prosecutors and agents invested time and resources in a futile search for "someone, anyone, who could corroborate anything that McNamee said."

"I am not here to talk about waste of government resources," Hardin said. Yeah, right. Hardin jumped on any mention during the jury selection process that the federal government and the U.S. Congress have challenges that are more important than the use of performance-enhancing drugs in baseball.

Using a dramatic map of the United States that showed every interview, Hardin then told the jury that the government contacted 187 witnesses, produced 268 reports of those interviews, conducted witness interviews in 79 locations and used the services of 103 agents and eight prosecutors. "And they came up with nothing," he said as the jurors stared, transfixed, at the map.

Hardin's scorn for McNamee was relentless and fierce and seemed to captivate the jurors. He showed a photo of McNamee taken when the former trainer testified before the grand jury in Washington, noting that McNamee was wearing a tie with the unmistakable logo of a company "he was hawking for."

He followed it with a shot of McNamee on "The Howard Stern Show" with both McNamee and Stern laughing uproariously as McNamee told Stern that Clemens "would soon be wearing a yellow jumpsuit."

It was a long interview, Hardin said. "McNamee was enjoying his celebrity and trying to make money with it. Was he paid for the interview? We'll find out."

Hardin particularly enjoyed describing for the jurors the $10 million libel lawsuit that McNamee filed against Clemens. "Here is what he says," Hardin told the jury. "He says, 'I am a dope dealer. You say I'm not a dope dealer. Then I'm suing you for slandering me, and you owe me $10 million.'"

Systematically and meticulously, Hardin went through the various assertions that Durham had made in his opening statement, repeatedly accusing Durham of telling only "half the story."

Durham used a mailing label produced by Kirk Radomski that Durham said showed that Radomski had sent HGH to Clemens' house in Houston. "The other half of the story is that the label was addressed not to Roger but to McNamee," Hardin said, flashing the label onto the jurors' screens.

Responding to Durham's account of a despondent Clemens in the locker room after failing to make it through the third inning of a playoff game against the Red Sox and saying "I need McNamee," Hardin noted that shortly after, Clemens won the final game of the World Series for the Yankees.

"That's the other half of the story," he said triumphantly a few inches from the rail of the jurors' box.

With lawyers of the quality of prosecutor Durham and defender Hardin, the trial always promised to be a battle fought at a high level, the kind of thing that lawyers and judges will be talking about for years at their conferences. But, in his opening statement, Hardin added dimensions of resolve and eloquence that we have not yet seen.

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.