Major League Baseball

Prosecution’s case weakened vs. Rocket

Published Apr. 23, 2012 1:00 a.m. ET

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Prosecutors would have the jurors believe that the spiked-hair man in the dark pinstriped suit with a silver and white striped tie seated at the defense table is just a perjurer, a person the government would go after for allegedly lying to Congress.

The fact that he’s Roger Clemens, a seven-time Cy Young Award winner and multimillionaire former ballplayer the feds have spent hundreds of thousands of dollars to pursue over four years is of no import.

“We didn’t go out and pick a fight with this man,” assistant US attorney Steve Durham told jurors in opening statements of the perjury trial of Clemens in US District Court on Monday. “In February 2008, he was a private citizen. We had no quarrels with him before our House of Representatives investigated an issue that was important to them. He made the choice (to attend the hearing). He made the choice to take the oath.”

That "issue" was performance-enhancing drugs in sports, illegal boosts Clemens told members of the Committee on Oversight and Government Reform he never used. That testimony eventually led to six felony counts — three for allegedly making false statements, two for perjury and one count of obstruction of Congress — and one mistrial later, Clemens, 49, is again facing up to 30 years in prison and a $1.5 million fine.

The fact that the public’s appetite for pursuing alleged doped athletes has waned isn’t supposed to enter into the mind of the 12-member jury sworn in Monday, although some prospective jurors questioned why the government has been involved in the steroid policing business. Judge Reggie Walton disclosed to the lawyers last year after the first trial was cut short on the second day of testimony due to inadmissible evidence that a few of those jurors had misgivings.

“Some of the jurors had said that they felt it was a waste of taxpayers' money at a time when we have significant fiscal problems in our country to prosecute this case again because they felt that Congress has all of these other issues on their plate,” Walton told the lawyers in his chambers last September, according to reports.

Worthwhile or not, former assistant US attorney Marc Mukasey said he expects the jury to be open-minded.

“I find that juries are terrific at putting their personal opinions aside and focusing on the proof, no matter what the subject matter of the case is,” said Mukasey, a partner at Bracewell & Giuliani. “When I've spoken to jurors after a trial, to a person, they've all said that they've taken their job with the utmost seriousness and were guided by the facts and the law.”

Clemens’ lead attorney, Rusty Hardin, won’t be able to use the cost or the value of the investigation as part of his defense strategy, but there will be reminders nonetheless. Walton allowed the same sort of map he did in the first trial, which detailed the hundreds of interviews authorities have conducted to bolster its case. Prosecutors had objected to the exhibit.

A couple off-handed comments during Walton’s jury instructions did reference fiscal responsibility.

“Because of government cutbacks, we can’t just throw away pens until they’re all out of ink,” Walton said.

The prosecution’s case was weakened Monday and Clemens’ legal team hasn’t even put on its opening statement. (That will take place Tuesday morning.) Walton ruled that prosecutors will not be able to ask Andy Pettitte — one the government’s star witnesses — about how he acquired human growth hormone, a drug Pettitte admitted he took to recover from an elbow injury in 2002. Pettitte told investigators that he had received the HGH from Brian McNamee.

Such testimony was meant to buoy the reputation of McNamee, a former strength coach who will testify he injected Clemens with steroids and HGH late in the hurler’s career. Maybe worse for prosecutors, Clemens’ legal team might be able to question the circumstances around McNamee’s firing from the New York Yankees.

McNamee was let go from his position as an assistant strength and conditioning coach with the Yankees in October 2001 after he was questioned by authorities. McNamee was seen having sex with an incoherent woman at a hotel pool while the Yankees were on a trip to play the Tampa Bay Rays. The date rape drug GHB was found in the woman's system, although McNamee was not charged.

Walton barred such testimony or questions in the first trial, but Hardin said the government has since come across new evidence. Hardin said that McNamee asked the Yankees director of security to throw out a cup that contained GHB and a security guard at the hotel saw McNamee having sex with an unconscious woman, information gleamed by interviews conducted by federal agents.

Walton didn’t immediately rule on the motion to allow the evidence.

Regardless, prosecutors will attempt to carry the theme of their 63-minute opening statement over what could be a six-week trial.

“A story of deceit and dishonesty and betrayal,” Durham repeated multiple times.

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