WASHINGTON — His large frame towering over the microphone, Roger Clemens leaned forward at the podium and declared to the judge in a deep voice with a Texas twang: “Yes sir, I am not testifying.”
Minutes earlier, four prosecutors representing the U.S. government huddled at their table and then declared: No, they wouldn’t roll the dice to try to introduce new evidence to bolster the credibility of their key witness. There was just too much risk that it could backfire.
The final set of witnesses took the stand Monday as the contentious, start-and-stop Clemens perjury trial entered its ninth week, and both sides played it safe with major decisions. The tenor would have obviously changed completely had the defendant chosen to take the stand, and the jury would have been given another set of dueling impressions of Brian McNamee if the government had sought to bring in more evidence of other players’ use of performance-enhancing drugs.
Clemens is charged with lying to Congress in 2008 when he denied using steroids and human growth hormone in his 24-season major league career. The defense rested, and the government called three rebuttal witnesses Monday — including one who had testy exchanges with a Clemens lawyer about evidence saved with a beer can — and closing arguments are set for Tuesday.
The jury, which has heard from 46 witnesses over 26 days of testimony, could get the case Tuesday afternoon. The jury will be able to deliberate on Wednesday if need be, before taking a four-day break while U.S. District Judge Reggie Walton is out of town. Barring a quick verdict, the trial will extend into a 10th week — when one of the jurors is scheduled to leave for a six-month trip to Germany.
With that in mind, the judge said he will promote the final alternate and designate the Germany-bound juror as the alternate. The juror added to the panel of 12 — eight women and four men — is an avid cyclist who said during jury selection that he knows people who use steroids.
McNamee, Clemens’ longtime strength coach, testified that he injected the former pitcher with steroids in 1998, 2000 and 2001 and with HGH in 2000. He is the only witness to claim firsthand knowledge of Clemens’ use of performance-enhancing drugs, and Clemens’ lawyers devoted much of the trial attacking his integrity.
To that end, the last of the defense’s 23 witnesses was Jerry Laveroni, the security director for the New York Yankees when McNamee was the club’s assistant strength and conditioning coach in 2000-01. Clemens lawyer Rusty Hardin used Laveroni to again make mention of two questionable incidents from 2001, when McNamee was involved in a criminal investigation in Florida and appeared disorientated in a hotel room in Seattle during a road trip.
“I don’t believe he could be believed under oath,” Laveroni said.
Clemens’ lawyer Rusty Hardin asked how much credibility McNamee has.
“Zero,” Laveroni replied.
To counter that powerful statement, the government wanted Laveroni to acknowledge that Yankees players Andy Pettitte, Chuck Knoblauch and Mike Stanton have all backed up McNamee’s assertion that he helped them get HGH.
However, Hardin said that would allow Laveroni to introduce more details about the Florida and Seattle incidents. The jury, in particular, hasn’t heard that McNamee was questioned about an alleged sexual assault in Florida in connection with a woman who was found to have a date rape drug in her system, or that McNamee then allegedly asked Laveroni to destroy evidence.
The judge said Hardin would be allowed to bring up the Florida incident only on a very limited basis — just enough to say that McNamee provided false information in connection with the investigation.
That apparently was too much for the quartet of prosecutors, who exchanged whispers and then told the judge they wouldn’t pursue a line of questioning about other players. The cross-examination of Laveroni was very brief — basically long enough for him to acknowledge that Clemens continued to work with McNamee long after 2001.
The government’s rebuttal witnesses included two who had already testified in the trial. FBI toxicologist Dr. Cynthia Morris-Kukoski countered a defense expert’s opinions about the waste McNamee said he stored in and around a crumpled beer can after an alleged steroids injection of Clemens in 2001. The defense has repeatedly referred to the evidence as “garbage.”
“One man’s garbage,” Morris-Kukoski’s said, “is another man’s find.”
The combative nature of the trial was exemplified by the testimony of Dr. Ed Blake, a DNA expert from Forensic Analytical Sciences. Blake took issue with some of the opinions expressed by the defense’s DNA expert. That drew several challenges from Clemens lawyer Michael Attanasio during cross-examination.
“You’re trying to confuse this jury,” Blake told Attanasio. “And you’re trying to confuse me.”
McNamee said he kept the beer can in a FedEx box in his house for more than six years, but his estranged wife, Eileen McNamee, testified last week that she didn’t remembering seeing a beer can in the box when she found it in her husband’s closet.
FBI agent John Longmire, making his third appearance on the stand, testified that Eileen McNamee gave a different account when he interviewed her last year. He said Eileen McNamee spoke of seeing a beer can inside the FedEx box — as well as a separate beer can outside the box that has not been introduced as part of the case.
“She said that she saw one beer can next to the FedEx box. … Separately, she saw a beer can in the plastic in the box, among other items,” Longmire said.
After Longmire was done and the jury sent home for the day, lawyers spent about 90 minutes arguing over various exhibits and testimony, including a lengthy debate on the nature of the verdict form.
One crucial point was left hanging: The defense again moved that the issue of whether Clemens was at teammate Jose Canseco’s house on June 9, 1998 is not relevant to the trial. Clemens said at his congressional deposition that he wasn’t — and one of the charges against him is that he obstructed Congress when he made that statement.
The evidence at the trial has clearly shown that Clemens was at Canseco’s house that day, but prosecutors have connected his attendance to steroids use only in vague terms.
“I do have problems with that allegation,” Walton said. He said he would study the matter further and rule on Tuesday.