Clemens' lawyer fires away in opening remarks

WASHINGTON – Rusty Hardin, forever playing the role of that bumbling, bumpkin lawyer who didn't do enough to save Roger Clemens from the jaws of an angry Congress, might be the most dangerous man in the E. Barrett Prettyman Federal Courthouse these days. His client is facing prison and there was Hardin standing before the jury Wednesday telling it "good afternoon," while it was only 11 in the morning.

Yet just as you begin to believe he's an old Texas gunslinger gone soft in the decade since he faced those slickster government officials while protecting the honor of a disgraced Arthur Anderson, you start to see the brilliance in those warbling non sequiturs. For an hour during his opening statement, he had the Clemens jury in his hand, lulling it with all kinds of rambling justifications for why Clemens didn't use steroids and thus did not lie to Congress about it. And just when you thought the jury was thoroughly befuddled, its attention having gone elsewhere, he dropped the hammer.

Rusty Hardin leaves federal court Wednesday after delivering his opening statement in the defense of Roger Clemens.
(AP)

Boom! Brian McNamee, the trainer who says he injected Clemens with steroids? He's a liar.

Boom! All that evidence the government showed earlier in the day, including used syringes with steroid residue and Clemens's DNA? McNamee must have fabricated it.

The jury stared, looking unsure what the heck to think. For an hour on Wednesday morning the government methodically presented the first shreds of evidence in its opening statement, a damning list that included photos of a needle encased in an orange cap, a syringe, three cotton balls. The government said the needle had residue from steroids and Clemens' DNA. Oddly there was an empty can of beer in the photograph, supposedly because its bottling date will help prove when the injections were made. The whole thing seemed airtight. A slam dunk. There was DNA and everybody knows DNA never lies. DNA saves wrongly accused men sitting on death row. Roger Clemens might have been able to shut down the American League but there's no way he can beat DNA.

Then Hardin got up, said "good afternoon" while it was still morning, and by the end nobody knew what they should think.

The government has a problem in this trial and that is basically that it's the government. The government has to play by the rules. The government has to compile piles of evidence and present it in a diligent way that convinces everyone that it's all accurate. Assistant U.S. Attorney Steven Durham seems like an honest man, earnest in his approach like every good government prosecutor should be. He has a bent nose, jutting jaw and stocky frame that says he might have played football back in school.

On Wednesday he was efficient and believable. He painted a portrait of an arrogant Clemens stalking to a congressional hearing he didn't need to attend simply to defend a good name sullied by the Mitchell Report. He then showed the pictures of the needle, syringe and cotton balls that are so far the most damning pieces of evidence against the pitcher. He said there were 15 instances in which Clemens had misled Congress and he only had to prove one, but because the government has done such a thorough job, he will "prove them all," in the coming weeks.

After opening statements were over the first witness he called was a former House parliamentarian who testified to the existence of the U.S. Capitol building. And once that had been established he began the tedious process of reading into the record the deposition the pitcher gave to Congress before his now infamous testimony in 2008. An FBI agent played the role of Clemens. A Broadway star he was not and the endless dramatic reading sounded like an audition for a fourth-grade production of "Our Town."

By mid-afternoon, the jury had to despise Durham.

In defending Clemens, Hardin doesn't have to have witnesses say Congress meets in a big, domed building in Washington. Instead he smiled and told the jury that even though he was coming from Houston, he and his wife had once lived in Washington and hardly considered this to be "hoss-tile territory." He looked at the jury, 10 women, two men, most of who are middle-aged and African-American, and said, "I lived in this city in the days of Roberta Flack." He said this was "trial by Congress," he said Clemens' appearance before Congress was hardly voluntary, that he was told he would have been subpoenaed if he didn't say yes. He said Clemens' good friend, Andy Pettitte(notes), whose testimony against the pitcher has always been significant to baseball fans because he has always been seen as more trustworthy, is indeed a good man. He repeated the words pushed by Clemens that Pettitte just didn't hear Clemens right when the pitcher said he never took HGH. He said the Clemens team is not going to tear apart Pettitte, which given the lack of baseball interest among the jurors is probably a good idea. Most wouldn't know Pettitte from Jose Canseco.

Roger Clemens looks on as his former personal trainer, Brian McNamee, testifies on Capitol Hill in 2008.
(Getty Images)

No, the villain here, Hardin said, is McNamee.

"We used to have an expression in Houston back in the old Oilers days," he said. "We used to say 'All roads to the Super Bowl go through Pittsburgh for Houston.' In this case, all roads go through McNamee."

They have always been an odd pairing, the ever-serious Clemens and his disarming lawyer who helped lead his client to a Congress scorned. Here was Clemens, the pitcher who blew hitters away with 95 mph fastballs, celebrating his strikeouts with clenched fists, paired up with a lawyer who is more like an aging left-hander lobbing looping curveballs to hitters who swing and find only air. Only at heart it seems Hardin is a little part Clemens, too, just enough to zip a few fastballs past the batters who are still awaiting the breaking stuff.

The narrative of Hardin in this case to date is one of a man too naïve to be here, smiling at prospective jurors and bidding them a good day. And yet he might just be sly like an old fox, giving the razzle-dazzle, getting heads to nod and bounce until he delivers the punch nobody saw coming.

Long after the government had showed its rock-solid evidence all tinged with DNA, Hardin put up a giant map of the United States dotted with boxes that he said represented the 72 locations where the government went in preparing its 229 investigative reports. He made it sound like an awful lot of effort to discredit one baseball player who testified to Congress and he said "we have a problem." He said the government "blanketed Houston" and all they could come up with was Brian McNamee.

McNamee the liar.

McNamee the fabricator.

And really, is that enough to send Roger Clemens to prison? Is it?

The clock on the wall said it had just turned afternoon and Rusty Hardin didn't bother to say "good morning."

He had said enough.

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