- Lester Munson, Legal Analyst
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The trial of Roger Clemens on charges that he lied to the U.S. Congress has barely begun. The jurors in Washington will be listening to the first witness when the trial resumes on Monday. But there are some things that are already apparent.
They don't agree on much, but both lead prosecutor Steven Durham and lead defense attorney Rusty Hardin agree on this: the importance of Brian McNamee's testimony. The prosecutor must persuade the jury that McNamee will be truthful in his assertions that he helped Clemens with steroids and HGH. And the defense must attack McNamee's veracity.
Durham has already warned the jury that the defense "is saving its sharpest knives for McNamee." Hardin did not disagree, telling the jury that "we're not going to say anything bad about anyone except Brian McNamee."
In his testimony before the congressional committee, McNamee managed to persuade both the Democrats and the Republicans that he was telling the truth. During the committee hearing, however, he never faced the kind of interrogation he will face when Hardin cross-examines him. Hardin was ready for the cross-examination last summer when the first attempt at a trial came to a sudden end, and he has had nine more months to prepare.
Although Durham will try to take the sting out of Hardin's attack by introducing some of McNamee's escapades in his initial questioning, Hardin will have plenty of ammunition. It will be difficult for Hardin to decide where to start -- McNamee's history of substance abuse, his DUI conviction, the night that McNamee passed out in the Yankees team hotel in Seattle, or the sexual-assault investigation in Florida with its allegations of his giving the woman a date-rape drug, lying to the grand jury and attempting to destroy evidence.
Hardin will demonstrate his mastery of the art of cross-examination on all of those issues, but his most productive line of examination will be McNamee's attempts to profit from the celebrity that resulted from his claims against Clemens. When he testified before the grand jury in Washington, McNamee knew he would face a media throng. To take advantage of the situation, he wore a tie that featured the logo of a company whose products, as Hardin said in his opening statement, "McNamee was hawking." Hardin also has a YouTube clip of McNamee discussing his ideas on nutrition with a flashy television personality who makes Sofia Vergara look plain. And then there's the Howard Stern interview and McNamee's attempt to sell a book (working title: "Death, Taxes, and Mac") and more.
McNamee's checkered past would be fertile ground for any lawyer. But in the hands of the masterly Hardin, it could become one of those cross-examinations that are shown again and again at lawyers' conferences.
Although Durham would never admit it, he knows what may happen to McNamee. Describing the 15 specific falsehoods attributed to Clemens in the indictment, Durham assured the jury, "We can prove seven of them without McNamee."
The Rule of Law
In their effort to convict Barry Bonds of perjury, federal prosecutors told the presiding judge they would present other players who had purchased steroids and advice from Bonds' trainer. That testimony would show the jury that the trainer, Greg Anderson, was in the business of dealing in steroids, and it would bolster the prosecutors' argument that Anderson did the same for Bonds. Go ahead and do it, responded U.S. District Court Judge Susan Illston, after considering the issue.
The prosecutors, Matthew Parrella and Jeffrey Nedrow, presented Jason Giambi, Jeremy Giambi and Marvin Benard to the jury, and the jury convicted Bonds on one count and voted 11-1 to convict on another count.
In their effort to convict Clemens of obstruction of Congress and perjury, federal prosecutors in Washington made an identical offer. They told Judge Reggie Walton that former players Chuck Knoblauch, Mike Stanton and Anthony Corso would testify that they purchased drugs and advice from McNamee. No, was, in effect, Judge Walton's response, you will not present these players to this jury.
Are the rulings contradictory? Yes. The rulings are irreconcilable. In these circumstances, the rule of law gives each trial judge broad discretion to make rulings that the judge views as proper. It allows the judge, in effect, to call them as the judge sees them. Even though the rulings are clearly contradictory, there is little that the losing sides can do about them. There will be no replay or review in a higher court. The higher court, if there were an appeal, would say only that it's up to the discretion of the trial judge. It's all part of the game.
The "So What" Defense
Hardin never misses an opportunity to describe the U.S. Congress as the "crime scene." It's one of a number of tactics he uses in his effort to give the jury the impression that the charges against Clemens are trivial and meaningless.
Hardin is saying, in effect, OK, maybe he lied about steroids. So what. People lie in Congress every day. Aren't there more important things for the federal government to investigate and to prosecute?
As he told the jury of the government's massive effort to find witnesses who could corroborate McNamee's allegations (187 witnesses, 268 interview reports, 79 interview locations, 103 federal agents, eight prosecutors), Hardin said, "I'm not talking about the waste of government resources; that's not my issue." It is, of course, his issue, and he'll be raising it every chance at every opportunity as the trial continues.
He and Clemens are hoping that the jurors suffer from the steroid scandal fatigue that emerges occasionally in media coverage and public discussions of the use of performance-enhancing drugs. It will not be a part of the official evidence in the trial, but Hardin will use casual remarks and asides to establish the notion with the jurors. It is the kind of thing that Hardin does as well as any lawyer anywhere.
Prosecutor Durham and his team know exactly what Hardin is trying to do. Their challenge will be to persuade the jury that the use of steroids is a threat to the integrity of America's games and that the jurors have a chance to send a message that this kind of cheating is criminal and will be punished.
Adding both the prosecution and defense teams together, there are nearly two dozen lawyers, agents, investigators, techies and paralegals working before the jury each day. In the face of these massive efforts by both sides, it may be difficult for Hardin to sell the idea that there is anything trivial in a trial with such massive efforts from both sides.
The jurors in Washington will be listening to the first witness when the Roger Clemens trial resumes on Monday. But there are some strategies that are already apparent.