WASHINGTON — Roger Clemens’ lawyer jabbed his left index finger and hammered away, relentlessly attacking Brian McNamee over his personal life and accusing the government’s chief witness of “making up this stuff on the fly.” The attorney finally sprung his trap and pointed out what appeared to be a flaw in the McNamee’s story about the collection of evidence that turned up in a beer can.
McNamee’s explanations: “I misspoke; I’m sorry” and “It’s never been asked that way to me.”
Clemens’ longtime strength coach endured a fifth day Friday of questioning — he’s now spent some 24 hours in the swivel chair between jury and judge in the perjury trial of the 11-time All-Star pitcher.
Clemens is charged with lying to Congress in 2008 when he said he never used steroids or human growth hormone. McNamee is the only witness who will claim firsthand knowledge of Clemens using performance-enhancing drugs, and he never wavered from that central accusation during Hardin’s cross-examination.
McNamee will return to the stand Monday in a trial moving so slowly that U.S. District Judge Reggie Walton — for the first time in more than three decades on the bench — imposed time limits to speed things up: Only 90 minutes per side for witnesses after McNamee and closing arguments limited to two hours apiece.
“I just can’t let this case meander on forever,” the judge said.
The trial was supposed to last four to six weeks, but it’s just wrapping up its fifth week — and the government said Friday it still has nine witnesses to call, down from the 14 it estimated the previous day. If the trial isn’t done by June 8, Walton said he may have to call a recess for about a month because of various scheduling conflicts.
“And then we’ll have some real unhappy jurors,” Walton said.
Clemens’ attorney Rusty Hardin spent three-plus days of cross-examination portraying McNamee as a chronic liar who frequently changes his story. Toward the end, Hardin raised numerous unsavory personal details: McNamee tampered with a dead body when he was a New York City policeman, he lied to investigators looking into a Florida incident in 2001, he had two driving-under-the-influence arrests in 2002, he got caught up in an Internet fraud investigation after ordering diet pills over the Web in 2004.
“Would you agree that you had a severe drinking problem?” was among the many accusatory questions from Hardin. McNamee answered “No, sir” to that one.
The aim was to take McNamee down little by little, and his weariness showed as he hung his head more than once. During one of many pauses in testimony, a juror reached over and handed McNamee a tissue so the witness could wipe his nose. McNamee also indicated, reluctantly, that he was hypoglycemic, thus explaining why he needed frequent breaks to elevate his low blood sugar.
But Hardin also aimed for a classic “gotcha” moment while asking McNamee about the Miller Lite beer can. McNamee says he put the needle and other waste from a 2001 steroids injection of Clemens into the can, but he also says the can contained remnants from injections related to other players.
When Hardin talked McNamee through a timeline of events dealing with the can, it became apparent that McNamee had not accounted for the actual moment at which he put the items from the other players into the can.
Hardin angrily demanded to know how materials from other players “flew” or “showed up magically” in the beer can. When prosecutors objected, the lawyer said: “Well, how did they get in there?”
“I put them in the can that night” after injecting Clemens, McNamee said.
McNamee went on to say “I misspoke; I’m sorry” when explaining the apparent gap in the story. When Hardin asked whether McNamee ever told government investigators that he put the other players’ material in the beer can that night, McNamee said: “It’s never been asked that way before.”
“Isn’t this,” concluded Hardin, “a classic example of you making up this stuff on the fly?”
McNamee never wavered over his core testimony that he injected Clemens with performance-enhancing drugs from 1998 to 2001, but the government has its work cut out for it as they try to rebuild their key witness in front of the jury. The judge said he would allow only 90 minutes of follow-up questioning from prosecutors, and they used up 20 minutes of that allotment before court adjourned for the weekend.
To bolster McNamee’s credibility, the government hopes to win an argument to include previously barred evidence that shows McNamee supplied drugs to other players who have since acknowledged that they were users. Hardin claimed that would open up a “bunch of minitrials” over each player associated with McNamee and could extend the trial for months.
The judge said he will rule on the matter Monday morning.
Late Friday afternoon, the House Oversight and Government Reform Committee and its chairman, Rep. Darrell Issa, filed a motion to quash Clemens’ subpoenas for Issa’s testimony and committee documents. That committee held the hearing that Clemens testified before in 2008; Issa, a California Republican, was not chairman at the time.
The motion argues that the subpoenas are barred by the Constitution’s speech or debate clause, which protects elected officials from being questioned in a lawsuit about their legislative work.
“In particular, the subpoena to Chairman Issa should be quashed because high-ranking government officials may not be compelled to testify absent extraordinary circumstances, including that the official is uniquely able to offer that testimony, unlike here,” the House general counsel’s office said in its motion.