Wednesday, July 13, 2011

The Rocket Goes To Court: Day One of the Roger Clemens Trial

The nice county officials here at Astros County have asked me to contribute a few words every night or so on the Trial of the Century: The Federal Government vs. Roger Clemens. And I'm game. But first, a few caveats: I'm not in the actual courtroom in D.C., and unlike with the Congressional hearings upon which the trial is based, there's no television coverage, so I'm depending on twitter accounts from reporters inside the court room and the occasional news story. Caveat two: I am an attorney, but I'm not a criminal attorney, so you'll be getting opinions based on what I remember from law school a long, long, long time ago.

And here's the important thing. I despise Rusty Hardin. I live in Houston, and I've been following Rusty's hi-jinks for a long time. I don't like the way he handles himself in court. I don't like the way he makes it all about himself. Yes, he wins cases, especially if you're a rich jock who's been pulled over for drunk driving in Harris County, Texas. But get him out of state court and into federal court, and he falls flat on his face. He should never have lost the Arthur Andersen case arising out of Enron, but he pissed off the judge and the jury for his continued inability to follow the rules of the court.

As I've made clear to my friends, if I'm ever in some kind of serious criminal problem, get me a real attorney and not Rusty Hardin.

So all of that said, let's get to it...

Today marked the first day of the Clemens trial. The jury was picked out over the last several days, so today the attorneys got to give their opening statements, and the government, which is the prosecution, got to start presenting its case.

Here's the important thing to know about this case. This case isn't about whether Roger Clemens took steroids or HGH. It's about whether he lied to Congress. It's a perjury trial, like what Barry Bonds went through a couple of months ago. The government has the burden of proof, and it's not enough for the government to prove he lied, they must prove that he lied and that the person willfully lied while under oath.

What's that mean? For instance, the government wasn't able to prove that Barry Bonds lied. Sure, we all know he lied, but the government couldn't prove it. He testified under oath that he didn't take steroids/HGH, but he did testify that he took the Clear and the Cream. We know that the Clear and the Cream were PEDs. So since Bonds testified to taking them, technically, he didn't lie. The government couldn't even prove that Bonds took the PED. They had lab records proving that he took the PED, but due to evidentiary matters, they couldn't get those records into evidence. That's the reason Bonds' trainer, Greg Anderson spent so much time in jail for contempt. He refused to testify that he gave Bonds PEDs, and he refused to testify regarding the records.

So the prosecutors have to prove that Roger Clemens lied to Congress. They have to prove that he lied about taking PEDs, and that he did so willfully. But unlike with the Bonds matter, the Clemens prosecutors have the guy who gave him the shots willing to testify that he shot up Clemens.

Here's one of the problems with what I heard today. I don't understand what Rusty Hardin is doing. He's got to knock out the credibility of Brian McNamee, the trainer, to get Clemens off. But Hardin seems more intent on attacking the validity of the Congressional hearings where Clemens made his statements. It seems to be that if the hearings weren't valid, if there was no legal reason to hold the hearings, then Clemens lying to Congress shouldn't matter. Hardin made a point of this, and he further made the point that the hearings were called solely to pit Clemens versus McNamee in an attempt to set a perjury trap for Clemens.

I checked with a couple of attorney friends regarding this to see if I'm missing something, but we all came to about the same conclusion. The validity of the hearings don't matter. What matters is that Clemens was placed under oath, and that he might have lied while under this oath.

While I'm not exactly sure why Hardin is following this line of attack -- and please, leave comments with your theories and feel free to correct me because, like I said, I'm not a criminal defense attorney -- but in some ways, this resembles his defense of former Houston Oiler quarterback Warren Moon when Moon was arrested and tried for spousal abuse. Hardin's line of attack there was to question why Moon was charged and tried since his Moon's wife refused to press charges. So that even though the police had evidence of the assault, and there was a 911 call, Moon was found to be not guilty by a jury.

Hardin also seems to forget that the hearings were called because Clemens, unlike anybody else named in the Mitchell Report, was quite loud in questioning the report, and since the report came about because of an earlier Congressional report, the hearing was called to get into Clemens' claims. It was also not mentioned by Hardin that Congress tried to cancel the hearings, but Clemens insisted they be held. And Clemens insisted that he be placed under oath.

Another line of attack for Hardin is the legit one, attacking the credibility of Brian McNamee, but even here, Hardin was dancing a fine line that found him pushing the judge's buttons. Team Clemens has made it clear, since the Mitchell Report came out, that McNamee is a lying scumbag who can't be trusted. They've called him a drug dealer and a rapist, and to back up the rapist remark, they go McNamee's arrest for sexual assault during a Yankees spring training. The problem is that McNamee was never charged with a crime. And the parties were told they couldn't refer to this arrest unless it was somehow brought up during McNamee's testimony. So of course, Hardin brought this up during his opening argument.

Hardin is also making a big deal out of Debbie Clemens and when it was that she took the HGH. From what I understand, Hardin said that Debbie Clemens will testify that this happened during 2000, not 2003 as McNamee alleges, thus further proof that McNamee is a liar and can't be trusted. The problem with this being a) that McNamee is still the one that gave her the HGH shot, and b) Roger Clemens also testified to Congressional investigators that this happened in 2003. So once again, I'm not sure as to how this will help Clemens' case.

The major news was that needles McNamee kept hidden in a can for years will be coming into evidence. And according to the Feds, the needles contain both Clemens' DNA and traces of PED.

There were three witness presented today. The first was a former House parliamentarian who primarily testified as to the legitimacy of the hearings. The second witness was an FBI agent who has been investigating Clemens. It was his job to read into the record the statements made by Clemens under oath both to Congress, and to Congressional investigators in a deposition a few days before the hearings. The third witness, who is still on the stand, was a congressional staffer for Henry Waxman, the chairman of the committee that held the hearings.

And that's where we stand.

I was asked to provide some snarky commentary, and I'm not sure I've done this. I am sure that Roger Clemens should win this case. However, Rusty Hardin is his attorney, and this is a trial in federal court. And judges in federal court aren't dependent on Rusty's campaign contributions to stay on the bench, so they're not willing to put up with the same crap that Texas judges are, and they don't like having their court rooms turned into circuses. That's a problem for Rusty Hardin because this is a guy who lives for the circus atmosphere.

I'm also sure of this. The key witness won't be Brian McNamee or Debbie Clemens. It will be Andy Pettitte. And everybody has agreed that if there's anybody telling the truth here, it's Andy Pettitte. That's always bugged me a bit because, well, Pettitte LIED FOR YEARS about not taking HGH. However, he's a likeable guy, and has that whole devoted husband, devoted to God thing going on. So no matter what Rusty does to McNamee, if the jury believes Pettitte when it comes to the infamous misremembered statement, Clemens could be in trouble.

So that's the opening. I'll try to be more snarky tomorrow, and I hope this wasn't too boring. But I'll state this once again: Clemens should win this as perjury is very hard to prove. But that's negated by Rusty Hardin who seems more concerned with a stupid attack on the legitimacy of the hearings.

If you have questions, leave them in the comments and I'll try to answer.