Jury begins deliberations in Clemens trial
Prosecution asks for common sense; Hardin calls trial 'outrageous'
WASHINGTON -- Roger Clemens' fate is in the hands of eight women and four men who began jury deliberations Tuesday afternoon in the federal perjury trial of the former star pitcher.Judge Reggie Walton gave the jurors final instructions and then sent them into deliberations at 4:42 p.m. ET, following more than four hours of closing arguments that suggested to them how they should view the evidence and testimony presented during nearly two months of proceedings at the U.S. District Court for the District of Columbia. In closing statements that signaled the final stage of a trial in its 33rd day since jury selection began, attorneys from both legal sides asked jurors to use common sense to determine their verdicts, but the government and defense obviously presented vastly different viewpoints about chief accuser Brian McNamee, Clemens' former strength and conditioning trainer. The members of the jury panel, which at the time included the 12 jurors who will decide the case and one alternate who later was excused from deliberations, listened intently to presentations by Assistant U.S. Attorney Gilberto Guerrero for the government and both Michael Attanasio and Rusty Hardin for the defense during the morning session. The presentations, held before a packed courtroom that included Clemens' wife and four sons, concluded in the afternoon with a rebuttal argument from Assistant U.S. Attorney Courtney Saleski, after which Walton read aloud detailed instructions before sending the panel into deliberations for, as Walton suggested, just about enough time to elect a foreperson. Veteran defense attorney Hardin struck the most dramatic tone in the course of the closing arguments, saying it was "outrageous" that the charges against his client ever were brought, that government prosecutors "lost their way" in pursuing a conviction of Clemens over the truth, and that the trial and the process of more than four years leading up to it is "crazy, crazy, crazy" because all Clemens ever said was that he didn't do it -- that is, use performance-enhancing drugs. "He's not a Cy Young witness. He's a human being, just like everybody else in here. He's going to answer questions just like anybody else. You're going to charge this man with a felony for this?" Hardin said, raising his voice to echo through the courtroom with the assistance of a wireless microphone. Mainly, the defense arguments focused on reiterating to the jury that this is a trial about two men: Clemens, the defendant, and McNamee, his accuser. Further, they tried to reinforce the idea that McNamee is a serial liar, showing him wearing a shirt with "Ly 0" on it to suggest he had told zero lies -- a play on how Clemens signed balls with CY 7 for his record seven Cy Young Awards -- to set up Hardin's line. "Saying Brian McNamee lied zero times is a bit like calling the Grand Canyon a ditch," Hardin said. In the first half of the government's close, Guerrero said the jurors should use their common sense and look at all the evidence and recognize that all along what they've heard from Clemens -- who didn't testify but has been heard through numerous excerpts from his testimony before Congress -- has been the "cover story" that he has used to hide his use of steroids and human-growth hormone, that it's a case of "reality vs. fiction" when it comes to Clemens' account. "One of baseball's most storied pitchers of all time ... had to keep his secret safe. Roger Clemens created a cover story," Guerrero said. Clemens, who won 354 games in a 24-year Major League career, is charged with three counts of making false statements, two counts of perjury and one count of obstruction of Congress for telling the House Committee on Oversight and Government Reform in 2008 that he never used steroids or human-growth hormone, also making other statements the government says were misleading to the investigation. McNamee, who worked with Clemens for the better part of a decade, testified before the same congressional committee and at this trial that he injected Clemens with performance-enhancing drugs numerous times from 1998 to 2001, saving evidence in a Miller Lite beer can and a FedEx box after injecting Clemens in August 2001. Clemens testified that McNamee only injected him with vitamin B12 and lidocaine. Addressing that McNamee kept the items to protect himself, Guerrero told jurors, "Good for him. He saved it. Now you have it. Now you can see the truth." Attanasio and Hardin countered by using much of their allotted two hours of combined time to continue criticisms of McNamee that have taken place during the trial. Condemning McNamee also means condemning the evidence he saved, which includes two cotton balls and a needle that have Clemens' DNA on it as well as residue of steroids. Attanasio, who handled much of the technical testimony throughout the trial, had a title of "That's it?" over the PowerPoint slide showing the three items among the rest of the evidence McNamee saved, eventually turning the items over to the government in January 2008. "There can be no doubt: The medical garbage is garbage," Attanasio said. Attanasio, who previously elicited from Andy Pettitte that he was "50-50" about whether -- as Pettitte had testified to Congress -- he understood Clemens to admit using HGH in a conversation that took place in 1999 or 2000, presented the actual cross-examination testimony from Pettitte, during which he said the conversation took place during a workout, and the comment was made in passing. "This wasn't advice. This wasn't some kind of sit-down conversation. This wasn't some kind of confession. Hogwash. Hogwash," Attanasio told jurors. Guerrero, who shared a theme with Saleski that Clemens was out to "deny, discredit and distance" himself from the accusations, earlier had suggested that Pettitte changed his level of certainty about the story because he "didn't want to testify against his friend" and that, "We submit to you that Andy Pettitte heard it correctly -- 100 percent -- right from Day One." Hardin in his closing went through each of the remaining 13 acts in the obstruction charge, saying that four of them actually relate to the issue of using PEDs but the rest are "tagalongs" that are "piggy-backed" on the other charges. One remaining act that was being considered for dismissal remained intact. Walton, after conferring with colleagues overnight, ruled Tuesday morning that Act 15, about whether Clemens went to Jose Canseco's house in June 1998, will remain in the case, adding that he does have concerns about the materiality of the charge. Hardin maintained that the government was "overreaching" by going after Clemens for denying allegations that first surfaced in the Mitchell Report on performance-enhancing drugs in baseball. "God help us if we've reached the point in this country that when a citizen stands up after being accused publicly and says, 'I didn't do it,' it becomes a federal matter to grind him into the dust," Hardin said. Saleski, who said repeatedly that the charges cannot be viewed in a vacuum the way the defense would like, countered, "This is not saying that a citizen can't deny doing something. They can. They just can't lie under oath." She also argued that there are important facts that should not be taken lightly, such as that McNamee injected Clemens' wife, Debbie, with HGH and that Clemens admits that McNamee injected him with substances he could have received from a trained medical professional. Saleski also asked jurors to consider McNamee's motive, or lack thereof. "The defense would have you believe that over a nine-year relationship there were millions of coincidences, and that Roger Clemens is the unluckiest man in the world," Saleski said. The jury will only meet from 1:30 p.m. to 5 p.m. ET on Wednesday and, if no verdict is reached yet, will not return to deliberations until Monday because Walton had a commitment late this week and jurors made plans based on those days being in recess. Juror No. 12, a former professor of political science who moved to the U.S. from Germany in 1946 when in his teens, was designated the alternate because he has a six-month trip to Germany scheduled to begin June 19. He will not participate in the deliberations. While there are many issues to discuss in relation to the six charges, one of which has 13 different acts about which to determine guilt, there's no way to tell how long the jury might deliberate before announcing their verdicts. By way of reference, the jury deciding Barry Bonds' federal trial heard 11 days of testimony and deliberated for three days and four hours. On the other hand, the jury in the O.J. Simpson double-murder trial heard more than eight months of testimony and returned a verdict after four hours of deliberations.
John Schlegel is a national reporter for MLB.com. This story was not subject to the approval of Major League Baseball or its clubs.