Government's Star Witness in Clemens' Perjury Trial Cracks

by John M. Curtis
(310) 204-8700

Copyright May 19, 2012
All Rights Reserved.                                         

              Wilting from relentless cross-examination in baseball pitching icon Roger Clemens’ second perjury trial, the government’s star witness, strength and conditioning coach Brian McNamee, stumbled on the witness stand.  Clemens first perjury trial ended in a mysterious mistrial July 14, 2011, when lead prosecutor U.S. Atty. Steven Durham violated U.S. District Court Judge Reggie Walton’s instruction to not expose jurors’ to pernicious hearsay from the wife of Clemens’ teammate Andy Pettitte.  McNamee confessed he “misspoke” when he told investigators he saved medical evidence against Clemens in a Miller-Lite beer can.  “Isn’t this a classic example of you making up this stuff on the fly,” asked Clemens’ lead defense attorney Rusty Hardin.  McNamee, a former New York City police officer [1990-93], admitted to personally injecting Clemens with steroids and Human Growth Hormone.

            Clemens denied using performance-enhancing drugs under oath before Congress Feb. 13, 2008, despite an exhaustive Congressional investigation commissioned by Major League Baseball and led by former Sen. George Mitchell (D-Maine), the so-called “Mitchell Report,” released Dec. 13, 2007.  Clemens, now 49, a seven-time Cy Young-winner, faces jail-time or house arrest, should he be convicted of perjury.  When former Oakland A’s outfielder Jose Canseco blew the whistle of MLB’s dirty little secret about steroids in his 2005 book “Juiced,” it was just a matter of time before baseball’s most dominant pitcher got dragged into the fray.  Only months before Clemens’ mistrial, MLB’s homerun king, former San Francisco Giant slugger Barry Bonds, was convicted of obstruction of justice April 13, 2011.  Bonds conviction assures that he won’t make it to Baseball’s Hall-of-Fame.

            Hardin did his job putting McNamee in the hot-seat, hammering him about the chain-of-custody of evidence stored in his beer can.  McNamee claimed he kept Clemens’ needle, steroids, Human Growth Hormone and saline in the can since injecting him in 2000.  Today’s testimony before the 12-member federal jury and Judge Walton indicated that the contents could have included items from other ballplayers.  Hardin did his best to show inconsistency in Hardin’s prior testimony.  “You were a police officer for three years, you know about chain-of-custody,” Hardin asked.  “A little bit,” McNamee answered.  Chain-of-custody-issues go the heart of the prosecution’s case, where McNamee collected direct evidence on Clemens’ steroid and HGH use.  If jurors detect inconsistency, it could impeach McNamee’s credibility, leading to Clemens’ eventual acquittal.

            Because of McNamee’s testimony against Clemens, Hardin must create the reasonable doubt needed for acquittal.  “Haven’t you testified that everything in the can was Rogers?” asked Hardin.  Jurors know that there’s much at stake for Clemens, whose freedom and eventual selection to MLB’s Hall-of-Fame hang in the balance.  Like Bonds, Clemens dominance as a MLB pitcher far exceeded his competitors, though no one can prove that Roger won more games because of performance-enhancing drugs. Hardin’s alarmed reactions to jurors about the beer can’s contents doesn’t fit McNamee’s prior testimony in which he admitted the can might have contained materials from Clemens’ New York Yankee teammates, including second baseman Chuck Knoblauch, who’s already admitted to using HGH.  Hardin tried to open the chain-of-command issue to raised doubts in jurors’ minds.

            When Clemens received a mistrial July 11, 2011, there were real questions whether the government would retry the case.  Had the U.S. attorney called its quits, it would have raised accusations of racism now that Bonds was convicted of obstruction of justice April 11, 2011.  Raising the chain-of-custody issue opens up a can of worms for jurors, unsure about McNamee’s credibility.  If McNamee lacks credibility, it’s going to be difficult for jurors to buy the government’s case.  Whether the items in the can were Clemens or not, raising doubts cause real problems for the prosecution.  Clemens should have followed former MLB homerun king and Canseco Oakland A’s teammate, St. Louis Cardinal slugger Mark McGwire when he refused to answer questions about steroid use before Congress April 20, 2007.  McGwire, who finally admitted to using steroids Jan. 12, 2010, was never prosecuted.  

           Hardin’s yeoman work on McNamee raises some eyebrows but doesn’t change the overall fact pattern to jurors, namely, that the seven-time Cy Young winner used steroids and HGH and denied it under oath before Congress Feb. 13, 2008.  To generate enough reasonable doubt, Hardin must make McNamee look like a serial liar.  “I put them in the can that night” when he collected the items from Clemens, McNamee testified.  Hardin asked why he didn’t tell government investigators that the can contained items from other ballplayers.  Hardin replied, “It’s never been asked that way before,” raising doubt about his testimony.  “I misspoke.  I’m sorry,” said McNamee, giving jurors the out needed to reject the government’s star witness and case against Clemens.  McNamee’s apology can only be seen as the kind of inconsistency that raises enough reasonable doubt for acquittal.

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