Roger Clemens Perjury Case In The Jury's Hands

Jun 12, 2012
Originally published on June 12, 2012 8:02 pm

The Roger Clemens perjury case is in the hands of the jury now. The panel of eight women and four men began deliberations late Tuesday, after prosecution and defense lawyers made their final arguments.

While the star pitcher's defense called the case "outrageous," prosecutors charged that Clemens chose to lie, mislead and impede a congressional investigation when he testified about performance-enhancing drugs.

The prosecution urged the jury to use its "common sense" to find that Clemens had intentionally misled Congress and then created an elaborate story to cover his tracks. The government admitted that it had a tough burden to bear, and agreed that its star witness, Clemens' former strength coach Brian McNamee, was "a flawed man."

McNamee originally pointed the finger at Clemens, after federal investigators confronted the coach with evidence of his drug dealing and supplying steroids to other ballplayers. Prosecutor Gil Guerrero tried to spin McNamee's flaws to his advantage.

"It was Roger Clemens who picked Brian McNamee, not the government," he reminded the jury. "It was Roger Clemens who employed Brian McNamee for 10 years, not the government."

The government insisted that there was strong evidence to corroborate McNamee's testimony, including cotton balls and syringes that McNamee said were used on Clemens. The cotton balls have DNA that is unmistakably Clemens', but the needles cannot be conclusively tied to the pitcher. At the same time, the government admitted that the evidence could have been contaminated, given that the cotton, needles and broken vials of steroids were all mixed together and stored in a beer can.

Beyond the physical evidence, the prosecutors said that common sense pointed in their favor. To believe Clemens, the government said, the jury would have to believe that McNamee had made it his "life's work" to frame Clemens.

"If he were framing him, he would have done a much better job, wouldn't he?" asked Courtney Saleski, the other government lawyer to make closing arguments.

At its turn, the defense declared the entire prosecution "a horrible, horrible overreach." The two lawyers who argued on behalf of Clemens focused the bulk of their two hours on McNamee, reminding jurors of the trainer's confusing, ever-changing story.

"If his lips are moving about this stuff," lawyer Michael Attanasio said, "he's lying."

They pointed out that every time McNamee got backed into a corner on the witness stand, he would shift the blame onto his wife, Eileen. "What do you think he'd do to Mr. Clemens when he'd do that to his own wife?" Attanasio asked.

It helps the defense case that Eileen McNamee testified for the defense and proved to be an impressive witness. She denied almost everything that McNamee had accused her of, including encouraging him to save the medical waste supposedly implicating Clemens, to use against the ballplayer later.

The jury listened closely to the four hours of closing argument. While the press and public laughed often at some of defense lawyer Rusty Hardin's folksy remarks, most of the jurors didn't even smile.

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MELISSA BLOCK, HOST:

Jurors heard closing arguments in the Roger Clemens perjury trial today at US District Court here in Washington. The former star baseball pitcher's defense called the case outrageous, but the prosecution said Clemens chose to lie, mislead and impede a congressional investigation when he testified about performance-enhancing drugs. NPR's Nina Totenberg was there. Now, she's here in the studio. Hey, Nina.

NINA TOTENBERG, BYLINE: Hi.

BLOCK: And tell us a little bit about the atmospherics in the courtroom today.

TOTENBERG: Oh, Melissa, this was the first day that the courtroom was really full. Clemens was there with his wife and four sons, all of whom looked just like him. At one point, Clemens walked down the hall slowly with the boys, one of whom had his arm draped over his father's shoulder.

BLOCK: And the summations, the closing arguments are the last chance that each side gets to put all the evidence in context after dozens of witnesses, weeks of testimony and try to persuade the jury. Start with the prosecution. What did they say?

TOTENBERG: Well, the prosecutors seemed to admit that they have a tough road. They kept calling their star witness, Brian McNamee, a flawed man. McNamee, remember, worked for the Yankees and for Clemens as a strength coach. And when Congress began investigating steroid use in baseball, McNamee became the lynchpin of the probe. When he was confronted by investigators who had evidence of his drug dealing, he implicated a lot of players who then admitted using performance-enhancing drugs, but not Clemens. He insisted he did not, and as a consequence, he's charged with lying to Congress.

The prosecutors seemed to admit today that they have a, as I said, a difficult time. Prosecutor Gil Guerrero told the jurors, we're not asking you to condone McNamee's acts or to like his character. We're not asking you to even like him. But it was Roger Clemens, he said, who employed Brian McNamee and the government - not the government. It was Roger Clemens who was his friend, not the government. And it was Clemens, he said, who chose to lie. As one of the other prosecutors put it, Clemens stole the truth from Congress.

BLOCK: Well, apart from the testimony of the trainer, Brian McNamee, what other corroborating evidence could the prosecutors point to in their case?

TOTENBERG: Well, frankly, much of it is by inference. Even the physical evidence, the cotton balls and needles that McNamee turned over to the government, that stuff is not the kind of evidence you would really want to have. Prosecutor Guerrero conceded that since McNamee kept the steroid and HGH bottles and the needles and the cotton swabs all together in his home, much of it in a beer can, that the bottles could have leaked onto the cotton balls. And there's no conclusive DNA proof on the needles. But Guerrero sought to make a commonsense point of that to make hay out of it in essence, telling the jury, don't you think if McNamee was going to frame Clemens, he would have done a better job of it.

BLOCK: OK. So that's the prosecution's case. What about the defense? What was their closing?

TOTENBERG: Well, the defense lawyers, Rusty Hardin and Michael Attanasio, stressed that McNamee is not only the heart of the government's case, he is the government's case. And that if you don't believe McNamee, there is no case. They pointed out that every time McNamee would get cornered on the witness stand, he would shift the blame to his wife, Eileen. If you're going to throw your wife under the bus, said Hardin, how hard is it to believe you would lie about Roger Clemens to save your neck?

BLOCK: And is that true? Did he throw his wife under the bus?

TOTENBERG: Well, yeah, he did, actually. And Mrs. McNamee testified, and she denied just about everything McNamee said about her role in all of this.

BLOCK: Very briefly, Nina, was she a good witness?

TOTENBERG: Well, she is in a nasty divorce with her husband, but I have to admit that I wasn't in the courtroom when she testified. My colleagues who were there said she was an extremely believable witness - calm, understated, didn't overstate any point - and that she denied almost everything she said about her - that he said about her role.

BLOCK: OK. NPR's Nina Totenberg talking about closing arguments in the Roger Clemens perjury trial. Nina, thank you.

TOTENBERG: Thank you, Melissa. Transcript provided by NPR, Copyright NPR.