WASHINGTON – Once again government prosecutor Steven Durham stood before a jury in room 16 of the E. Barrett Prettyman Federal Courthouse pointing a finger at former star pitcher Roger Clemens. And once again, just as he did in the opening statement of this perjury trial he bungled last year, Durham talked about lies: the lies before Congress, the lies to investigators, the lies to the country. All of the lies that brought them to here.
Never did Durham talk about the prosecution's Andy Pettitte problem.
For all the years and money the government has spent trying to prove Clemens lied to Congress when he said he never used performance-enhancing drugs, only two damning pieces of evidence are known. Prosecutors have the testimony of a man a congressman called a "drug dealer," someone who for years kept bloody needles and cotton balls that allegedly contain Clemens' DNA and steroid residue. And they have Andy Pettitte.
To most baseball fans, Pettitte is the credibility. When confronted with past use of PEDs, Pettitte admitted his guilt. Pettitte, a 16-year veteran pitcher, is seen as an honest man, a decent man. And when he testifies that Clemens told him he used human-growth hormone, a baseball fan is inclined to trust him.
But the jury selected Monday does not know Pettitte. This is the problem with prosecuting a baseball star in Washington, a city that didn't have a major-league team from 1972 to 2005. The jurors are not baseball fans. They don't see Pettitte as good or honest or decent. To them, Pettitte is no more believable than the procession of crooks and liars who will fill the witness stand day after day. Proving otherwise will be the government's hardest task.
The jurors are largely middle-aged, more than half are female. They didn't grow up in a Washington with baseball. Most couldn't even say they knew what Clemens did. They couldn't tell if he played baseball or football or tennis. Even fewer heard of Pettitte.
Last year it appeared Durham was working hard to get around the Pettitte obstacle when he tried to slip a tape of Rep. Elijah Cummings reading a statement from Pettitte's wife, Laura, saying she remembered her husband telling her Clemens had admitted steroid use to him. This was a problem because using anything from Pettitte's wife was considered inadmissible in the trial. The judge, Reggie Walton, had been adamant about this. In fact, he gave a direct order: DO NOT USE PETTITTE'S WIFE.
Then Durham used Pettitte's wife.
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Durham told the judge his use of the Cummings clip was a mistake, something the prosecution forgot to pull from the case after Walton gave his order. Still, when the tape began playing, Durham made no move to turn it off. When the words of Laura Pettitte ran in easy-to-read tape on the bottom of the screen, he didn't run to cover them. Undoubtedly, the prosecution knew it was going to have to somehow buttress Pettitte's credibility and was going to push any way it could.
Little appears to have changed in a year, other than the government is in greater need of a conviction. Gone is the politeness between Clemens' attorney Rusty Hardin and the prosecutors. The government has added three more attorneys to its team, giving it an armada of five. Presumably, there won't be any more mistakes.
But it's clear the government attorneys understand they have a flimsy witness in Brian McNamee, Clemens' former strength trainer. Hardin is itching to chop him to pieces. Twice on Monday, Hardin practically begged Walton to allow humiliating evidence about McNamee, including an accusation of a rape that was never prosecuted. Even if this evidence never makes the courtroom, McNamee does not have much credibility.
Pettitte is the government's best hope, but only if the jury buys into his wholesomeness.
On Monday the government fought hard to keep Hardin from using a chart in his opening statement that seemed to have great effectiveness with last year's jury. The chart showed all the places around the country federal investigators had gone to find evidence of Clemens' drug use. The point then, as now, was that the government had probably spent hundreds of thousands of dollars – if not more – to find proof Clemens took PEDs and yet all it could come up with was Brian McNamee, a couple of needles and Andy Pettitte.
It's an old courtroom gimmick, the kind of thing you might see on a Matlock rerun, but it can work, especially when a jury doesn't know much about Roger Clemens and doesn't understand why it should think Andy Pettitte is any more honest.
The government lost its objection. The chart remains.
Is losing the trial next?
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