Roger Clemens’ first trial on federal perjury and obstruction charges ended in a mistrial last July. His new trial is slated to begin with jury selection Monday. Here are the key players in the case:
The personal trainer
Though the charges might be similar, there are several major differences between the trials of Barry Bonds and Clemens. Chief among them is the cooperation of the respective personal trainers who allegedly supplied the performance-enhancing drugs.
Personal trainer Brian McNamee is expected to face a strong challenge from Clemens' legal team.
Bonds’ friend and former trainer, Greg Anderson, refused to testify and served several months in jail for contempt, silence that dealt a major blow to the case against Bonds and kept out much of the damning evidence.
Jeff Novitzky, a former IRS agent who uncovered the BALCO scandal and now works for the Food and Drug Administration, had better luck with Clemens’ trainer, Brian McNamee.
Facing charges of steroid distribution, McNamee was persuaded by Novitzky to talk with investigators directed by George Mitchell, a former senator tapped by Major League Baseball commissioner Bud Selig to conduct an independent investigation into drug use in the game.
McNamee’s allegations were the basis for Clemens’ inclusion among the 86 players named in the Mitchell Report, and the trainer repeated the allegations under oath to Congress, claiming he injected Clemens with steroids in 1998, 2000 and 2001 and with human growth hormone (HGH) in 2000.
McNamee could offer the most damaging testimony in this trial, but it won’t come without doubt.
“He is a very tarnished witness,” said Marc Mukasey, a partner in the law firm Bracewell & Giuliani. “If this case hinged on his testimony, this case would be very tough to prove.”
Adds Peter Keane, dean emeritus of the Golden Gate University School of Law in San Francisco: “The jury would have an easy time coming up with reasonable doubt because all of the baggage he brings. McNamee is going to be easy to rip apart.”
McNamee, a former New York City police officer, denied for years that Clemens had used steroids before he was pressured by Novitzky. Clemens’ attorneys will argue the allegations leveled by McNamee were fabricated to avoid prosecution.
McNamee’s character will certainly be questioned by Clemens’ legal team, although US District Judge Reggie Walton might not allow questions about an alleged sexual assault in which McNamee was questioned by Florida authorities. McNamee, then an assistant strength and conditioning coach with the New York Yankees, had accompanied the team for a series against the Tampa Bay Rays in October 2001. He was seen having sex with an incoherent woman at a hotel pool, and though the date rape drug, GHB, was found in the woman's system, McNamee was not charged.
At a hearing Friday, Walton refused to unseal a March motion by the prosecutors that apparently would be damaging to McNamee’s credibility. Walton said unsealing the document would make it more difficult to seat an impartial jury, although the unspecified information will likely be known in days — either via testimony or Walton agreeing to unseal the documents once a jury has been selected.
The main reason the Clemens trial could stretch twice as long as Bonds’ proceedings is the evidence McNamee turned over to federal authorities.
McNamee kept in his basement bloody syringes and gauze along with vials said to contain steroids — some wedged into beer cans — for years, and he said Clemens’ DNA could be found on the items.
The government listed many of the items in a filing submitted earlier this month. Expect Clemens’ legal team to argue that the chain of custody — how the items were stored and accounted for — was hardly ideal.
“This is solid evidence, even if the chain of custody isn’t very good,” Keane said. “How did McNamee come to have Clemens’ DNA? It’s not like the O.J. (Simpson) case where you had possible contamination at the lab. McNamee has ampules, gauze and syringes apparently with Clemens’ blood on them. It’s his DNA. That’s pretty tough to dispute.”
Experts, including Don Catlin, cofounder of the UCLA Olympic Analytical Lab, are expected to be called by both sides to dissect the evidence.
Prosecutors are also expected to introduce medical documents covering Clemens’ stints with the Yankees and Toronto Blue Jays. Clemens claimed that McNamee injected him only with vitamin B12 and lidocaine, substances that were authorized to be administered only by a team physician.
Rusty Hardin, Clemens’ lead attorney, hinted at a Friday hearing that the defense will indeed attack the chain of custody of the medical waste, possibly even going as far as using McNamee’s divorce filings to raise doubt.
The former players, managers
Teammates and mangers covering much of Clemens’ career — along with some players he went up against and MLB commissioner Bud Selig — could be called to testify during the trial, according to a witness list released at the start of the first trial.
Prosecutors listed New York Yankees catcher/designated hitter Jorge Posada, former slugger Sammy Sosa, Bonds and former Yankees manager Joe Torre. Clemens’ attorneys, meanwhile, aim to call Wade Boggs, David Cone, Mike Boddicker — all former teammates of Clemens — and former Astros manager Phil Garner.
Chuck Knoblauch and Mike Stanton — both teammates of Clemens with the Yankees — were also listed. But it’s Andy Pettitte who will highlight the cast of former ballplayers slated to take the witness stand.
Pettitte, a teammate of Clemens with both the Yankees and Houston Astros, is the only person outside of McNamee who can attest Clemens spoke about the use of PEDs. Pettitte admitted to using HGH in 2002 and 2004, but those are the only specks on his otherwise untainted reputation.
“Andy Pettitte is such a believable witness,” Keane said. “He’s a born-again Christian, and he’s not shady (like McNamee). He was a friend of Clemens’. If the jury is undecided about any part of the case, I think they will look back at (Pettitte's) testimony and that should resolve any question.”
Clemens’ attorneys have again sought to limit — if not bar entirely — the testimony of the former players. Most of the former players would not be testifying about personal knowledge of Clemens' alleged use of PEDs but, rather, that there was a a culture of performance-enhancing drug use” in the sport.
“The government should be restricted to testimony and evidence concerning Mr. Clemens and its accusation that he was not truthful when testifying to Congress,” Hardin wrote in a filing earlier this month. “The government should not be permitted to buttress its weak evidence on this point by introducing back-door inferences about other players’ use of performance-enhancing substances or, worse yet, the existence of a purported “culture” in Major League Baseball to use such substances.”
Walton ruled during the previous trial that he would limit the testimony of the former players because it would unjustly influence jurors.
The judge and jury
Walton’s approach on the bench doesn’t sound dissimilar to his days on the football field.
“He was hard-nosed,” said former major leaguer Ken Griffey Sr., who attended high school with Walton in Donora, Pa.
One example during football season stands out for Griffey, who was two grades behind Walton.
“He was carrying the ball when somebody grabbed his facemask and yanked him down,” said Griffey, who currently manages the Bakersfield Blaze of the California League. “He was hurt pretty bad and had to wear a neck brace. But he played the next week, although I doubt his parents were very happy about that.”
Walton is a former assistant US attorney and superior court judge and was associate director of the Office of National Drug Control Policy under President George H.W. Bush. Then, a decade ago, Walton was appointed to the US District Court by President George W. Bush. Cases over which Walton has presided include the perjury trial of Vice President Dick Cheney's former chief of staff, Lewis "Scooter" Libby.
Walton was hardly a timid figure in the first trial, especially after prosecutors showed an exhibit that was not admissible in court. Hours after the video was shown to the jury on the second day of testimony, Walton declared a mistrial for a mistake a "first-year law student" wouldn’t have made.
Jury selection for the first trial was tedious, taking four days to complete. In the end, the jury for the first trial consisted of 10 women and two men, along with four alternates.
Some of those jurors told Walton they believed pursuing a case against Clemens “was a waste of taxpayers’ money,” according to a meeting between the lawyers in the judge’s chambers last September. Walton described how the unspecified number of jurors felt as he disclosed a conversation he had with a former law clerk, whose spouse is an assistant US attorney, at a picnic last July.
Although some jurors questioned the expenditure to try Clemens, the jury pool in DC is seen as neutral ground in the case.
“Clemens doesn’t have home-field advantage,” said Carl Tobias, a professor at the University of Richmond (Va.) School of Law. “He’s not in Texas. DC is much more neutral than other venues.”