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Clemens retrial may hinge on physical evidence

Righty faces perjury, obstruction charges from 2008 testimony
WASHINGTON -- A two-hour hearing Friday set the stage for the start of the retrial of Roger Clemens next week, and it's even more apparent now that former trainer Brian McNamee will be at the center of the proceedings.

In his courtroom at the U.S. District Court for the District of Columbia, Judge Reggie Walton heard from both sides on several government motions that were submitted last month. Through the course of the hearing, much of the discussion centered on McNamee, Clemens' former trainer, who is expected to be a key prosecution witness in the trial and undergo vigorous cross-examination from the defense.

Charged with six federal counts of perjury and obstruction of justice related to his testimony before Congress in 2008, Clemens was not at Friday's hearing but is expected to be there for the duration of the trial, as he was the first time around in July, when a prosecution mistake caused a mistrial.

The first issue addressed in the Friday hearing related to a motion the government made to seal certain information that, it was eventually made clear, had to do with McNamee.

Lawyers for Clemens and a lawyer representing The Associated Press and The New York Times objected to the request to seal the information for reasons of transparency and Clemens' right to be tried in full view of the public. But, after 45 minutes of arguments, Walton ruled that the information would remain sealed until the end of the trial, or until the defense tries to enter it at trial, likely during cross-examination of McNamee. Walton said he would consider the media attorney's suggestion that the information be unsealed once the jury is impaneled, since the judge's main concern was that the information, which he may rule is not going to be admissible anyway, could taint the jury pool.

In the course of those arguments, Clemens' defense team indicated that the government's further investigation since the mistrial shows more problems than originally thought with the chain of custody of key physical evidence McNamee kept for years before turning over to the government. McNamee, who told Congress he injected Clemens with performance-enhancing drugs on many occasions, kept a syringe and medical waste -- items the government says has steroids and Clemens' DNA on it -- in an empty beer can before handing it over to authorities.

Most of the rest of the hearing was devoted to things Clemens attorney Rusty Hardin said in his opening statement the first time around and a list of items the government would like to bar him from doing again -- from putting the jurors in Clemens' shoes and suggesting the type of punishment Clemens might receive if found guilty to Hardin's homespun, conversational style during voir dire with jurors.

Walton did not immediately rule on any of those motions to restrict how Hardin can go about his opening statement, but both sides came to more of an understanding about what Walton considers in play for the opening statement.

"I didn't like my opening statement when I read it the last time. I don't think I'll be using the same one," Hardin said.

Government attorney Courtney Saleski noted that if, indeed, Hardin does go astray on the issues discussed Friday, the government plans to object during his opening statement.

"That is your prerogative," Walton said.

Among the other items discussed was whether the government could tie together Andy Pettitte's testimony -- that he discussed Human Growth Hormone with Clemens, then immediately talked to McNamee about it to the fact that Pettitte first used the substance three years later, in 2002, without McNamee administering it. Also, the defense fought to retain the leeway to suggest that Congress was not acting within its purview when it held the 2008 hearings in the first place.

"The jury's going to have to consider: Is this a legitimate exercise?" defense attorney Michael Attanasio said.

Assistant U.S. Attorney Steven Durham said witness and Congressional staffer Phil Barnett, who was explaining just that when the trial was interrupted, again will explain that it was "a serious and legitimate" hearing with the goal of protecting young people from the dangers of performance-enhancing drugs.

Jury selection is scheduled to begin Monday morning and Walton suggested the process to choose 12 jurors and four alternates will last most of the first week, as it did the first time around. The proceedings are expected to last 4-6 weeks.

Clemens, a seven-time Cy Young Award winner who was one of baseball's biggest pitching stars in a 24-year career, was indicted in 2010 on six charges of perjury, giving false statements and obstruction of Congress. The charges are based on his 2008 testimony before the House Committee on Oversight and Government Reform in which he denied ever using performance-enhancing drugs.

John Schlegel is a national reporter for