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Friday, May 11, 2012
Updated: May 13, 8:10 AM ET
Attorneys play dirty in Clemens case

By Lester Munson

As the Roger Clemens perjury trial slogs into its fourth week of testimony, it is increasingly clear the prosecutors and the Clemens lawyers do not like each other.

They hide their antagonism when they are in front of the jury, but the growing hostility is clear in their actions, their arguments and their treatment of each other out of the jury's presence.

In most trials of this magnitude in America's federal courts, it would be simple professional courtesy for the two sides to disclose their schedules of witnesses. The prosecutors would advise the Clemens lawyers of their witnesses for the next few days, and, when the Clemens lawyers begin to present their evidence later in the trial, they would return the favor. It would be beneficial to both sides as they manage the vast array of exhibits and materials they need for each witness. It would also help the media contingent reporting on the trial.

But despite numerous requests and pleas, lead prosecutor Steven Durham remains steadfast in his refusal to tell the defense which witnesses he plans to present. Durham offers no explanation for his refusal, but it is apparent the prosecutors believe that disclosure would somehow hurt their chances for success and give some advantage to the Clemens lawyers.

Steve Durham
Assistant U.S. Attorney Steve Durham is not giving an inch to Roger Clemens' defense team.

If Durham thinks he can surprise the defense with a witness and gain some sort of advantage, he is wrong. Rusty Hardin and his team of lawyers, investigators and paralegals were wholly prepared for the trial in the summer of last year. After the mistrial, they had another nine months to sharpen their preparations. Hardin knows how to prepare a case; he is operating with a massive budget, and he is ready for anything Durham can offer. There is nothing Durham can do that will surprise Hardin and his team.

With no apparent advantage to be gained, the only explanation for Durham's intransigence is that he is attempting to aggravate the defense lawyers. He is succeeding.

The hostility between the two sides also becomes apparent when Durham and the other prosecutors object repeatedly to questions from Hardin and fellow defense lawyer Michael Attanasio. Like most great trial lawyers, Hardin rarely objects to questions asked by the prosecutors. He knows the jurors grow impatient with repetitive objections, and he does not want an objection to focus attention on a subject that is adverse to Clemens' interests.

The prosecutors are taking a different approach, raising numerous highly technical objections that bring the trial to a halt. Under the rules that govern the questioning of witnesses, the prosecutor guides the witness through the subjects the prosecutor views as important to his or her case. The questioning is known as "direct examination."

When Hardin or Attanasio then cross-examines the witness, he is limited to subjects raised by the prosecutor, a rule known as the "scope of the direct examination." Although it is the rule, it is also the custom and the practice in federal courts to permit wide latitude in cross examination. Rule 611 of the Federal Rules of Evidence requires both sides to make their "interrogation and presentation effective for the ascertainment of the truth" and to "avoid needless consumption of time."

Whenever Hardin or Attanasio moves ever so slightly beyond the scope of the prosecutors' direct examination, the prosecutors are quick to jump up and object. They even object when the subject is well within the scope of their direct examinations.

The situation becomes worse when Judge Reggie Walton then allows the prosecutors to argue the objection in a "sidebar" discussion held at his bench out of the hearing of the jury. These discussions of what appear to be simple issues frequently go on for 5 or 10 minutes or more. A reading of the transcripts of these discussions shows that much of the argument and conversation comes from Walton as he wonders aloud about his rulings.

If Walton rules in favor of the prosecution and stops the witness from answering the question from Clemens' lawyers, it prolongs the trial and adds to its expense. To present the testimony, the defense must bring the witness back into court later this month when the defense presents its side of the case.

In addition to the time and the expense, it disrupts the life of the witness. It all could be avoided if the two sides agreed to present all evidence from the witness in a single appearance. It also could be avoided if Walton overruled the government's technical objections and allowed the testimony. But Walton's approach so far has been to throw up his hands and look back on his career as a lawyer, observing, "This isn't how we tried cases. We worked together."

The frustration from the repetitive objections and the endless arguments boiled over out of the presence of the jury Thursday when Hardin raged to Walton, asking, "Are we really going to make him come back?" Walton ruled for the prosecutors in an objection to testimony from Astros team physician David Lintner.

Later on the same day, Hardin complained to Walton that he had "been trying cases for 37 years" and had never had anyone treat him the way the prosecutors were treating him. "They want an order not to do this and not to do that. This is silly stuff," he said.

Hardin has a point. The technical objections from the prosecutors and Walton's ponderous and indecisive approach to them have already added hours, even days, to the trial.

It's easy to see why the sides don't like each other, and it's a situation that will only grow worse.