PED use by others will be issue in Clemens trial

WASHINGTON -- With a matter of minutes remaining in Brian McNamee's appearance on the witness stand, which has exceeded 24 hours of court time to this point, a key question emerges as the U.S. government's perjury case against Roger Clemens continues into its sixth week:

What's next?

The government has resisted announcing its lineup of witnesses, but Assistant U.S. Attorney Daniel Butler said last week that the prosecution intended to call 14 more people to the stand. However, as Judge Reggie Walton made it clear the pace of the trial must pick up considerably, the government and Clemens' defense team agreed to stipulate to information from five of those witnesses, leaving nine to go.

Once McNamee, Clemens' former strength and conditioning trainer, steps down from the witness stand that sits between Walton's bench and the jury box in Courtroom 16 at the U.S. District Court for the District of Columbia, several issues must be wrapped up before the prosecution rests.

At the top of the list is the promised DNA evidence that purportedly will link Clemens to the use of performance-enhancing drugs via the physical evidence McNamee kept in a beer can and a mailing box for almost seven years before handing it over to federal authorities.

The defense already has made overtures to the jury that even if Clemens' DNA is found among the items, the preservation and chain of custody relating to that evidence is considerably less than ideal.

Clemens is charged with three counts of making false statements, two counts of perjury and one count of obstruction of Congress related to his testimony during a Feb. 13, 2008, hearing before the House Committee on Oversight and Government Reform and a Feb. 5, 2008, deposition conducted by committee staff members. Clemens said at the hearing, "Let me be clear: I have never used steroids or HGH."

McNamee said in his own deposition, and at that same hearing, that he had injected Clemens with performance-enhancing drugs on numerous occasions and had saved the physical evidence he said would prove it.

That evidence was picked at by defense attorney Rusty Hardin over much of his exhaustive cross-examination of McNamee last week, including the revelation to the jury that not all of the evidence McNamee turned over in January 2008 can be connected to Clemens. McNamee actually did inform the government of that and said during his deposition with Congressional staffers that some of the items were used on others -- most notably the HGH, since McNamee has said he only injected Clemens with that in 2000, and the evidence was gathered in August 2001. In his deposition, McNamee said the HGH "can only" belong to Chuck Knoblauch, a former teammate of Clemens on the Yankees.

The first order of business Monday will be for Walton to rule whether other players' use of PEDs can come into questioning when Butler concludes his redirect examination. The government moved to mention that McNamee helped Knoblauch and Mike Stanton use the drugs, which Walton seemed to be willing to allow because the defense had opened the door to it in attacking McNamee's credibility. At the same time, Walton cautioned the government that bringing out that the other players also admitted to their use might open the door to the defense bringing out others who were said by McNamee to use but then denied it, setting up a series of "mini-trials."

Walton also must rule on a motion from the House of Representatives' legal staff to quash a subpoena of current Committee on Oversight and Government Reform chairman Darrell Issa (R-Calif.) issued by the Clemens team.

The end of the McNamee testimony won't come until the jurors have the opportunity to submit questions of their own, as well. Walton has allowed the jurors to do that, and they have submitted questions of many of the witnesses. Whether they would want to throw a few more questions at the chief accuser in the case or whether the testimony that will take more than a week to complete has sufficed remains to be seen.

One aspect of the trial that will be different going forward is that Walton -- for the first time in more than 30 years on the bench -- has imposed time limits on the attorneys, saying direct and cross must each take no more than 90 minutes and closing statements may not exceed two hours. Butler said he could wrap up his redirect of McNamee in 90 minutes and used 20 of those minutes Friday -- as Walton reminded him at the end of the day.

The sixth week will be somewhat abbreviated, with court in recess all of Tuesday and most of Wednesday because Walton has prior commitments. The trial will be held on Friday, however, which is normally a day it is in recess, so Walton can address other matters.