Globe iconLogin iconRecap iconSearch iconTickets icon

McNamee cross-examination by Hardin testy

Jurors express concern over length of Clemens perjury trial

WASHINGTON -- As the federal perjury trial of Roger Clemens continued through a crucial stage Thursday, cross-examination by veteran defense attorney Rusty Hardin of chief accuser Brian McNamee included exchanges between the two men that were contentious at almost every turn, and it often went in circles.

By the end of the day, Hardin had led McNamee to admit that he lied to investigators for the government and the Mitchell Report -- McNamee saying he did it in order to protect Clemens and others -- and had raised several issues about the physical evidence -- or "stuff," as Hardin calls it -- McNamee saved for seven years before turning it over to authorities.

However effective Hardin might be at convincing the jury that McNamee can't be trusted, it's clear jurors continue to be frustrated by the pace of the trial.

During a mid-morning break on the 18th day of proceedings, jurors asked the court for an estimate on how much longer the trial will take, and Judge Reggie Walton brought that question up with attorneys from both sides out of the jury's presence.

"At this pace, I think we'll be here forever," Walton said to the attorneys before being informed by Assistant U.S. Attorney Daniel Butler that the prosecution's case will continue at least through next week and possibly past the Memorial Day weekend.

As cross-examination continued, the often circular nature of the questions and answers was most evident during an exchange in which Hardin attempted to establish that McNamee was talking to federal investigators about Clemens' use of performance-enhancing drugs while doing everything he could to keep that information from Clemens.

"He didn't ask," McNamee said.

"How could he ask if he didn't know?" Hardin said.

"How could I answer if he didn't ask?" McNamee said.

McNamee is the key prosecution witness in the trial against Clemens, who 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 at that same hearing that he had injected Clemens with performance-enhancing drugs on numerous occasions. He'd also saved vials and small glass containers called ampules containing steroids and HGH, used and unused needles and syringes and cotton balls he says he used when injecting Clemens with performance-enhancing drugs.

Through the course of the testimony Thursday, McNamee often asked Hardin to repeat his questions, at one point saying, "I'm trying to keep up, man." Hardin raised his voice at times to get yes or no answers from McNamee, Butler raised numerous objections to how Hardin's questions were phrased and Walton often interjected to clarify questions, trying to move things along. After Butler raised his final objection of the day and began to explain it before saying what the objection was, Walton stopped him, saying, "No, no, no ... No!" and telling the lawyers to approach the bench.

Toward the end of the tense day, Hardin showed photographs of the evidence McNamee said he stored in a Miller Lite beer can he put inside a FedEx box once he took it home in August 2001, which McNamee kept to show his wife to placate her concerns about how much time he was spending away from his family to train Clemens.

Through McNamee's testimony on cross, Hardin established several possible inconsistencies: a large-gauge needle among the evidence may have been kept outside the can, whereas McNamee had testified before that he used beer cans or water bottles to store used sharp objects so no one could get pricked by one; McNamee knew Clemens did not drink Miller Lite, but said he retrieved the can from Clemens' recycling bin in his Manhattan apartment; the gauze included with the evidence may have been used to wipe Clemens' buttocks after an injection as McNamee originally thought or might have McNamee's DNA on it, possibly from being cut by a broken ampule; and that McNamee's story of why he kept the materials has been a "moving target," changing from his original story that he "didn't trust Roger, to a degree" to his testimony in the trial that he did it to get his wife "off my back."

Federal officials previously testified that DNA swabs were taken from Clemens, McNamee and McNamee's lawyers, but the results of DNA testing have not yet come into evidence.

Hardin began the day asking about the now famous party at Jose Canseco's house in Florida, which McNamee had said was on a Saturday in June 1998, testifying that soon thereafter he injected Clemens with steroids for the first time. Hardin showed McNamee and the jury that the series in Florida was played Monday through Wednesday, and Hardin wanted to find out -- in categories he set forth Thursday -- if that was a mistake, bad memory or a lie.

"It was a mistake," said McNamee, who later volunteered that Canseco asked him to carry steroids back to Toronto with him on the team charter at the end of that trip.

Hardin also reminded McNamee that he first was contacted by federal agent Jeff Novitzky in May 2007, and then entered into evidence an e-mail exchange in January of that year with Jim Murray of Hendricks Sports Management, Clemens' agent. McNamee claimed in that e-mail that Novitzky had told him his name didn't appear in the affidavit relating to the 2006 raid on the home of former Major Leaguer Jason Grimsley.

"Oh, that was a lie," McNamee said of the e-mail to Murray, saying he lied because he feared he would lose his clients after a Los Angeles Times article said, erroneously as it turned out, that Clemens and Andy Pettitte were among PED users whose names were redacted in the Grimsley affidavit.

"I gave up my whole life for Roger Clemens, and I had to make sure I could continue to do my work," McNamee testified, saying he wanted to make sure Clemens knew he would not betray him or Pettitte.

Hardin questioned McNamee about having testified previously he gave Debbie Clemens an HGH injection in the 2003-04 offseason. He'd said previously that the HGH shot was in the same time frame of a Sports Illustrated photo shoot of Roger and Debbie Clemens, including Debbie in a bikini. But Hardin established that the photo shoot was in the summer of 2002, so it couldn't have had anything to do with the HGH story.

Hardin also led McNamee to admit that with each meeting with federal agents he increased the number of times he'd injected Clemens. He later testified, "I never lied about the usage, I just didn't. I just lied about the amounts."

Hardin asked McNamee about the Mitchell Report and whether he had read it -- "Read it, lived it," McNamee replied -- and established that McNamee met with Mitchell investigators only because he feared his agreement to cooperate with the federal government would be in danger.

"[Assistant U.S. Attorney Matthew] Parrella said, 'If you don't meet with them, all bets are off,'" McNamee said.

Later, McNamee said that Novitzky and Parrella were "visibly upset with me" for holding back on them when he turned over the physical evidence to them in the office of attorney Richard Emery, who had to be asked twice to leave the courtroom during testimony about the physical evidence because he is a potential witness about it.

At one stage, McNamee said he was "50-50" on whether he gave certain information to Novitzky and federal prosecutors in his first or second meeting with them.

"[Being] 50-50 means you're not sure about the subject we're talking about, correct?" Hardin said, clearly leaping on the opportunity to reiterate what Pettitte had agreed to under cross-examination about the conversation he had with Clemens in which he remembered Clemens admitting to HGH use.

After a short break that followed that exchange, Walton informed the attorneys about the jurors' concerns about the pace of the trial. Butler said the government has 14 more witnesses after McNamee, most "very short."

Walton asked Hardin about the relevance of where some of his questioning was going before getting to the bottom line on the pace of the trial, using a familiar phrase again.

"Jurors have lives they want to get back to, and if it drags out, jurors get angry," Walton said. "Somebody's going to pay the price for that. I don't know who it is. It's a coin flip -- 50/50."

John Schlegel is a national reporter for