July 6 (Bloomberg) -- Roger Clemens, the former New York Yankees pitcher, will seek to sow doubt among jurors that he lied to Congress about drug use by attacking the credibility of the only eyewitness against him and denying he had been injected with performance-enhancing substances.
Legal arguments made before jury selection, set to begin today in federal court in Washington, show a defense focused almost exclusively on Brian McNamee, Clemens’s former trainer and the government’s chief witness. Clemens, who admits being injected by McNamee, said he thought he was receiving vitamins and other permissible drugs.
A congressional investigation into the use of performance enhancing drugs in Major League Baseball concluded the record seven-time Cy Young Award winner used banned substances toward the end of his 24-year career. Prosecutors said about 45 witnesses will support their contention that Clemens knowingly lied about drug use in a congressional interview and a public hearing in February 2008. Clemens has denied wrongdoing.
“A lot will come down to McNamee and whether the jury buys his story and thinks he’s credible,” said P.J. Meitl, a criminal defense lawyer at Bryan Cave LLP. In a 2007 study, Meitl found just six defendants in the past 60 years who went to jail for charges related to lying to Congress.
Probe by Congress
Clemens, 48, is charged with one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury. If convicted on all charges, he faces a $1.5 million fine and as long as 30 years in prison. Opening statements are scheduled for next week.
The trial, expected to last four to six weeks, will feature testimony from Clemens’s wife, former congressional investigators and Major League Baseball players, including ex-Yankees teammates Andrew Pettitte and Chuck Knoblauch, as well as an unidentified former player who the government said “elected not to use performance enhancing drugs.”
Clemens denied drug use since former U.S. Senator George Mitchell released a report on steroids in Major League Baseball on Dec. 13, 2007, that named Clemens and 85 other players. Clemens, in 2008 testimony to Congress, repeatedly denied ever using banned substances.
The Federal Bureau of Investigation opened an inquiry after the committee’s leaders told then-U.S. Attorney General Michael Mukasey in writing that Clemens may have lied under oath.
Clemens’s denials were contradicted by McNamee, who said he injected the athlete with steroids and HGH, then-House Oversight and Government Reform Committee Chairman Henry Waxman and former ranking committee Republican Tom Davis told Mukasey. Pettitte, meanwhile, told the committee that Clemens admitted in 1999 or 2000 that he used HGH, they said.
Clemens testified that McNamee injected him with only vitamin B-12 and the painkiller Lidocaine. Pettitte, who played alongside Clemens with the Yankees and Houston Astros, “misremembers” a conversation they had about HGH, Clemens said. HGH is considered a performance-enhancing drug because of its ability to grow muscle and aid recovery after training.
McNamee’s lawyer, Richard Emery, didn’t respond immediately to e-mail and phone messages seeking comment yesterday.
Rusty Hardin, a lawyer for Clemens, said in an April 21 court hearing that the entire defense theory is that McNamee lied to Congress and to prosecutors.
“Brian McNamee is conning everybody and has been from the beginning,” Hardin said.
Arguments between defense lawyers and prosecutors before U.S. District Judge Reggie Walton yesterday centered on evidence and testimony related to McNamee.
Prosecutors want Pettitte and ex-Yankees Knoblauch and Mike Stanton to tell jurors about the performance-enhancing drug injections they said McNamee gave them.
Walton, who said he’d rule on the issue during trial, said in court such testimony may be too prejudicial.
“The jury may say ‘Well, if they knew what they were taking from McNamee then why wouldn’t Clemens not know what he was getting?’” Walton said.
Assistant U.S. Attorney Steven Durham called it a “central issue of proof” similar to the government’s case against former baseball player Barry Bonds, in which a judge allowed such testimony.
Walton said the fact McNamee will testify is a critical difference.
Bonds’ trainer, Greg Anderson, refused to take the stand and was jailed for contempt. Bonds was found guilty in April of obstructing a federal probe into steroids. Jurors failed to reach a unanimous decision on three perjury charges.
The government is also seeking to limit evidence regarding a 2001 St. Petersburg, Florida, rape investigation where McNamee was interviewed by police. McNamee made false statements in the course of that probe, prosecutors said in a court filing.
Clemens shouldn’t be allowed “to inflame the jury” by bringing up “long-off, uncharged allegations of sexual assault,” prosecutors argued. McNamee was never arrested or charged with any offense.
Hardin said in court yesterday the Florida probe could become relevant as the defense seeks to cast doubt on McNamee’s testimony.
“The incident in Florida guided and led McNamee to the full course of conduct being alleged here,” Hardin said.
Walton said he found the connection of the rape case to the perjury charges “tenuous.”
Clemens, a right-hander known as “the Rocket,” pitched for the Yankees, Boston Red Sox, Astros and Toronto Blue Jays. During his 24-year major league career, he won 354 games, ninth in major league history, and had 4,672 strikeouts, ranking third all-time.
The case is U.S. v. Clemens, 10-cr-00223, U.S. District Court, District of Columbia (Washington).
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