WASHINGTON — Roger Clemens’ lawyer wagged his finger. His voice cracked. He called himself Columbo. He claimed evidence had been manipulated. He appealed to the jurors’ hearts as well as their heads in his opening statement Tuesday in defense of the seven-time Cy Young Award winner.
“God help me if we have reached a stage in this country where we make a federal case of denying you committed a crime,” Rusty Hardin said in a hushed voice at the end of a presentation that lasted more than an hour and drew no fewer than four objections from the government.
“Our government should never, ever prosecute somebody for saying ‘I did not do it.'”
Less theatrical, but just as self-assured, was the voice of Clemens himself, heard on an audio tape in one of the first pieces of evidence presented at the trial.
“I have never used steroids,” Clemens is heard saying without hesitation during a 2008 deposition on Capitol Hill. “Never performance-enhancing steroids.”
Clemens’ confidence and Hardin’s Texas charm featured prominently on Day 6 of the retrial that seeks to determine whether Clemens lied to Congress — at the deposition and at a hearing that followed — when he denied using steroids and human growth hormone. The first attempt to bring the case to court ended in a mistrial when the government introduced inadmissible evidence.
The jury also heard from the trial’s first witness, congressional staffer Phil Barnett, who happened to be on the stand when the mistrial was declared last July. The government is using Barnett to help establish that Congress had the right to conduct its hearings on drug use in sports.
The court adjourned early in the afternoon for the rest of the week because the judge had a previously scheduled out-of-town trip. The trial is scheduled to resume Monday.
Hardin’s opening statement was a contrast to the more pedantic approach Monday from prosecutor Steven Durham, who attempted to link together many dates and facts designed to portray Clemens as an all-star who took performance-enhancing drugs to lengthen his career and then became “trapped in a web” of lies to cover up his actions.
Hardin is known as a master of connecting with jurors, and he had no trouble grabbing their attention. He was at his most riveting when he displayed a map of the United States showing all the locations of the people the government had interviewed in an attempt to gather evidence against Clemens.
“One hundred three federal law enforcement officers over whether a baseball player used steroids!” said Hardin, his voice rising and his index finger raised emphatically in a not-so-subtle attempt to play to the popular notion that the case is a waste of taxpayer money.
At one point, Hardin fumbled at the podium, looking for a piece of paper. “I’m not acting like Columbo. I am Columbo,” he said to the jurors, some of whom smiled at the reference of the 1970s television detective show.
Hardin called the case “a tale of two men” — Clemens and Clemens’ former strength coach, Brian McNamee. McNamee, the government’s key witness, has said he injected Clemens with steroids and HGH and kept a needle and some gauze from one of the injections.
Hardin said the evidence collected by McNamee is a “mixed-up hodgepodge of garbage,” and showed a photo of a slightly crushed beer can in which some of it was kept. He contended that the needle was used to inject Clemens with vitamin B12 and later altered by McNamee to make it appear that it had been used for steroids.
The lawyer tried to call into question McNamee’s motives, showing the jury the cover of an unpublished manuscript called, “Death, Taxes and MAC: The Autobiography of Brian McNamee,” with the “X” in “Taxes” formed by two crossed syringes.
“Is there any market for this book if he hadn’t made these allegations about Roger Clemens?” asked Hardin, who also showed a picture of McNamee appearing on the Howard Stern show in 2009.
Hardin also challenged the notion that Clemens testified voluntarily in 2008. He said that Clemens appeared after receiving an invitation from the House Oversight and Government Reform Committee because he knew he’d be subpoenaed if he refused. Clemens didn’t want to testify, Hardin said, but did want “the world to know he hadn’t done what he had been accused of.”
But in one of the recordings of the deposition the prosecution played, Barnett tells Clemens at the outset: “We thank you very much for being here today and being here voluntarily.”
Barnett said the Clemens testimony during the deposition was important to the committee as it evaluated whether the 2007 Mitchell Report was an accurate barometer of the steroids problem in baseball — and what actions the committee needed to take to respond. His testimony is meant to counter claims by Clemens’ defense that the 2008 hearing was a “show trial.”
Clemens, wearing a pinstriped suit, sat at the defense table, occasionally taking notes, and watching the exhibits on a small monitor. Jurors might have been puzzled at how old he looked: Hardin twice referred to Clemens as being born in 1982 — instead of 1962.
Hardin also had to back down from his previous day’s criticism of the judge for not allowing Clemens’ wife to sit in the courtroom for opening statements. Hardin initially claimed that Debbie Clemens was permitted to stay for opening statements last July; she was not.
“I apologize. I misremembered,” said Hardin, drawing laughs for reprising the word used famously by Clemens at the 2008 hearing. “The only thing I ask is that you not charge me with perjury.”