WASHINGTON – A federal court jury saw snippets of Roger Clemens denying steroid use at a now-famous 2008 congressional hearing, then listened Monday as Clemens' lawyer tried in fits and starts to declare that proceeding to be "nothing more than a show trial" that shouldn't have taken place.
The perjury retrial of the seven-time Cy Young Award winning pitcher entered its third week, which unfolded as yet another session bogged down by constant objections. The day ended, however, with a cliffhanger that could prove crucial to the outcome.
The judge appears on the verge of deciding whether the government can broaden its case by bringing in witnesses such as former Clemens teammate Chuck Knoblauch, who has acknowledged use of human growth hormone as stated in the Mitchell Report on the use of performance-enhancing drugs in baseball.
The Clemens team doesn't want such testimony to reach the ears of the largely baseball-ignorant jury, but prosecutors argued it's a necessary rebuttal if Clemens' lawyer continues to question the motive behind the hearing.
"They can't have their cake and eat it, too," prosecutor Steven Durham said. "This simply isn't fair."
Meanwhile, the behind-the-scenes sniping was again nastier than anything the jurors have yet to hear in court. Clemens' lawyers used a written response, to a government motion filed with the court, to aim their latest broadside at the government's key witness. They claimed that Clemens' former strength coach Brian McNamee has a past that "contains more dirt than a pitcher's mound."
If nothing else, prosecutors cleared a psychological hurdle when they managed to get through the day without getting into trouble with U.S. District Judge Reggie Walton. It was during the first trial last July that they played an excerpt from the 2008 hearing that had been ruled inadmissible — prompting Walton to declare an embarrassing mistrial in an already costly case.
The retrial, resuming after a five-day break and expected to last several more weeks, still seems light years away from addressing the principle question that could matter most to the jurors when they decide whether Clemens lied to Congress: Did he use steroids and human growth hormone during his remarkable 24-year career?
As it was, the court spent Monday hearing a second day of testimony from the trial's first witness, Phil Barnett, who was majority staff director for the House Oversight and Government Reform Committee when that committee held the 2008 hearing.
Prosecutors used Barnett to try to establish that Congress was within its bounds when it called the hearing, which took place two months after Clemens was named in the Mitchell Report. The government has maintained that the validity of the Mitchell Report was important, in part because of overall concerns over steroids and HGH as a public health issue.
With Barnett on the stand, the government played portions of Clemens' televised testimony at the February 2008 hearing as well as an audio tape of the deposition that preceded it.
"Let me be clear: I have never used steroids or HGH," Clemens said confidently in the videotape of the hearing.
Taking his turn to question Barnett, Clemens' lawyer Rusty Hardin tried in several ways to raise doubts about the validity of the hearing, but many of his questions were met with objections by the government or by an attorney from the House of Representatives, leading to several private conferences at the judge's bench and one debate that took place with the jury out of the room.
"How is that relevant?" Walton said at one point, clearly puzzled by Hardin's line of questioning.
Hardin told the judge he wanted to show that the hearing "was nothing more than a show trial of Roger Clemens on that day" and "nothing more than to punish the man who had the temerity to say he did not commit a crime."
"That is not a legitimate function of Congress," Hardin said.
But, with the jury back in the room, Hardin had trouble making his point without running afoul of the rules, frequently evoking objections that were sustained by the judge. Hardin was even admonished for using the term "potted plant" to refer to a lawyer who sits quietly at a hearing.
Hardin did manage to raise before the jury the issue as to whether Clemens' testimony at the hearing was truly voluntary — suggesting that Clemens might have been subpoenaed had he had not agreed to appear. Hardin also had a suggestive response when Barnett had trouble recalling certain facts about the hearing. Hardin quipped, "Memory's difficult sometime, huh?" — perhaps to set the stage for later in the trial when witnesses are to testify about events of more than a decade ago.
Earlier in the day, the filing by Clemens' lawyers detailed a litany of alleged "prior bad acts" in the life of Clemens' former strength coach, Brian McNamee. The list includes "police misconduct" when McNamee was a member of the New York Police Department, "purported substance abuse and addiction," ''a conviction for driving while intoxicated," ''indebtedness and collection actions," ''tax fraud," ''prescription drug fraud and distribution," ''loan fraud" and one other allegation that was blacked out for publication.
The filing also criticized the government for not doing enough to investigate McNamee and accused prosecutors of having a "secret campaign to shield its star witness from legitimate cross-examination."
"Mr. McNamee is a serial liar who has engaged in myriad episodes of relevant misconduct," Clemens' lawyers wrote.
The government noted that several of the allegations from McNamee's past surfaced during an acrimonious divorce in 2010 and had not been substantiated. Even if they were, prosecutors said they have little or nothing to do with his credibility in reference to Clemens. The government's case will hinge on whether the jurors believe McNamee when he testifies that he injected Clemens with steroids and HGH.
"The overwhelming majority of these allegations may not be pursued during any cross-examination of Mr. McNamee, because they do not have any bearing on his character for truthfulness," the government argued in an earlier filing.
Clemens arrived in court wearing a blue short-sleeve dress shirt, red tie, and dark pinstripe suit. He was approached by a man, pulling one of the wheeled suitcases common among lawyers at the courthouse, who said "Good luck," and shook his hand.
"Thank you buddy," Clemens replied.
"Go Yankees," the man said as he walked away.
Associated Press writer Frederic J. Frommer contributed to this report.
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