As the perjury retrial of the seven-time Cy Young Award winning pitcher entered its third week, yet another day was slowed by constant objections. And the behind-the-scenes sniping was nastier than anything the jurors have yet to hear in court.
Clemens’ lawyers used a written response Monday to a government motion filed with the court, to aim their latest broadside at the government’s key witness. They claimed that Clemens’ former strength coach Brian McNamee has a past that “contains more dirt than a pitcher’s mound.”
If nothing else, prosecutors cleared a psychological hurdle when they managed to get through the day without getting into trouble with U.S. District Judge Reggie Walton. It was during the first trial last July that they played an excerpt from the 2008 hearing that had been ruled inadmissible – prompting Walton to declare an embarrassing mistrial in an already costly case.
The retrial, resuming after a five-day break and expected to last several more weeks, still seems light years away from addressing the principle question that could matter most to the jurors when they decide whether Clemens lied to Congress: Did he use steroids and human growth hormone during his remarkable 24-year career?
As it was, the court spent Monday hearing a second day of testimony from the trial’s first witness, Phil Barnett, who was majority staff director for the House Oversight and Government Reform Committee when that committee held the 2008 hearing.
With Barnett on the stand, the government played portions of Clemens’ televised testimony at the February 2008 hearing and an audiotape of the deposition that preceded it.
“Let me be clear: I have never used steroids or HGH,” Clemens said confidently in the videotape of the hearing.
Taking his turn to question Barnett, Clemens’ lawyer Rusty Hardin tried in several ways to raise doubts about the validity of the hearing, but many of his questions were met with objections by the government or by an attorney from the House of Representatives, leading to several private conferences at the judge’s bench and one debate that took place with the jury out of the room.
“How is that relevant?” Walton said at one point, clearly puzzled by Hardin’s line of questioning.
Hardin told the judge he wanted to show that the hearing “was nothing more than a show trial of Roger Clemens on that day” and “nothing more than to punish the man who had the temerity to say he did not commit a crime.”
“That is not a legitimate function of Congress,” Hardin said.
But with the jury back in the room, Hardin had trouble making his point without running afoul of the rules, frequently evoking objections that were sustained by the judge. Hardin was even admonished for using the term “potted plant” to refer to a lawyer who sits quietly at a hearing.
Hardin did manage to raise before the jury the issue as to whether Clemens’ testimony at the hearing was truly voluntary – suggesting that Clemens might have been subpoenaed had he not agreed to appear. Hardin also had a suggestive response when Barnett had trouble recalling certain facts about the hearing. Hardin quipped, “Memory’s difficult sometime, huh?”