7:09pm

Mon April 23, 2012
The Two-Way

Prosecutor Accuses Clemens Of 'Deceit,' 'Dishonesty'

Originally published on Tue April 24, 2012 6:49 am

The retrial of baseball great Roger Clemens began in earnest Monday after a week of jury selection. Clemens is charged with lying in 2008 to a congressional committee when he denied ever using steroids or human growth hormone.

He will be judged by a jury of 10 women and 6 men — 12 jurors and 4 alternates — who will decide whether Clemens lied under oath about using the drugs when he testified before a congressional committee investigating the use of performance-enhancing drugs in baseball.

Prosecutor Steven Durham in his opening statement to the jury said Monday that Clemens, unlike other baseball greats who owned up to their mistakes, told lies and "other lies to cover up those lies." The prosecutor used a string of pejoratives to describe what he called the "Clemens story" — "deceit ... dishonesty ... betrayal ... hypocrisy ... vanity ... ego ... and pride."

The prosecution's main witness is onetime trainer Brian McNamee, who is expected to testify that he repeatedly injected Clemens with steroids and HGH. Clemens' defense lawyers will argue that McNamee made up the steroids allegations and then cut a deal for immunity from prosecution in exchange for his testimony.

The defense will also highlight McNamee's character warts, which include him parlaying his position as a Yankees trainer into a job promoting dietary supplements and marketing himself as Dr. Brian McNamee — a title he earned from a diploma mill in Louisiana that has since been shut down. He was also investigated on a rape charge in 2001 involving a near fatal dose of a date-rape drug, but police dropped the matter after questions were raised about the alleged victim's credibility.

Because of McNamee's past, the prosecution will try to buttress his testimony with physical evidence such as syringes and cotton swabs that have traces of steroids, HGH and Clemens' DNA. The problem is what lawyers call "chain of custody." McNamee claims he kept these syringes and cotton swabs for two years in a closet, while the defense will likely suggest that McNamee doctored them.

The prosecution is also expected to call a more stellar witness: fellow pitcher and teammate Andy Pettitte, who was one of Clemens' best friends. Pettitte has admitted using these drugs, and says Clemens once admitted to him that he used HGH. Clemens doesn't say his old friend is lying. He says Pettitte either misheard or misunderstood something he said.

Clemens' first trial was aborted last summer when prosecutors showed the jury evidence that Judge Reggie Walton had ruled inadmissible, and a mistrial was declared.

Jury selection for the second trial took a week, with many jurors dismissed when they said they thought the prosecution was a waste of the government's money. The ones who made the cut appear to be largely uninterested in baseball. Of the 12 jurors and four alternates, seven said they had never heard of Clemens.

Neither the jury nor the public has been told which jurors are alternates. The group is roughly two-thirds female; seven are white, nine African-American. The group includes a Treasury Department employee; an art historian with the Smithsonian; a program analyst with the D.C. government who loves to read Christian romance novels and bake; a retired political science professor; a supermarket cashier; and a Nuclear Regulatory Commission analyst who grew up down the street from a house rented by baseball greats Mickey Mantle and Roger Maris.

Copyright 2012 National Public Radio. To see more, visit http://www.npr.org/.

Transcript

ROBERT SIEGEL, HOST:

Take two of the trial of baseball great Roger Clemens. It began in earnest today after a week of jury selection. Clemens is charged with lying to a congressional committee about his alleged use of steroids and human growth hormone.

The seven time Cy Young Award winner has steadfastly denied using performance enhancing drugs. NPR legal affairs correspondent Nina Totenberg was at the federal courthouse here in Washington, D.C. today and she joins us now. Hi'ya.

NINA TOTENBERG, BYLINE: Hi'ya.

SIEGEL: And we've seen this movie before.

TOTENBERG: Yeah. Clemens' first trial was aborted last summer when prosecutors showed the jury evidence that the judge had very explicitly ruled inadmissible and Judge Reggie Walton declared a mistrial.

SIEGEL: So, today the prosecution and defense began presenting their opening statements to the jury. Give us an overview, first, of the prosecution's case.

TOTENBERG: Well, we only got as far as the prosecution's case today, but we know the defense's case, sort of.

SIEGEL: Right.

TOTENBERG: So, remember, Clemens isn't charged with using steroids or HGH. He's accused of lying about it under oath when he testified before a congressional committee that was investigating the use of performance enhancing drugs in baseball.

Prosecutor Steven Durham told the jury that Clemens sought to pump up his sagging career in the three-year period between 1998 and 2001 by having himself injected with these drugs and that he then lied about it to maintain his reputation.

The prosecutor told the jury that the Clemens' story is one of - and he used a string of adjectives - deceit, dishonesty, betrayal, hypocrisy, vanity, ego and pride.

SIEGEL: And what's the prosecution's proof of all this?

TOTENBERG: Well, principally, two witnesses and some physical evidence. The main witness is one-time trainer Brian McNamee, who is expected to testify that he repeatedly injected Clemens with steroids and HGH. But McNamee has enough character warts that the prosecution will try to buttress his testimony with a more stellar witness and with syringes and cotton swabs that have traces of steroids, HGH, in Clemens' DNA.

SIEGEL: And you mentioned McNamee's character warts. What are his alleged warts?

TOTENBERG: Well, to start with, he parlayed his position as a Yankees trainer into a job promoting dietary supplements and marketing himself as Dr. Brian McNamee, a title he earned from a diploma mill that has since been shut down in Louisiana. He was investigated on a rape charge involving a near fatal dose of a date rape drug, but the woman wouldn't testify so the police dropped the matter.

Most of all, of course, McNamee cut a deal for immunity from prosecution in exchange for his testimony, so the defense is basically going to say he made all this stuff up to save his own skin.

SIEGEL: And then there's this very unusual dimension of the physical evidence.

TOTENBERG: Well, the problem is - and that is if you could call it that - the problem is what lawyers call the chain of custody. McNamee says he kept these syringes and cotton swabs for two years in a closet and the defense will likely suggest that he doctored them.

SIEGEL: And the other witnesses you referred to?

TOTENBERG: The big one, of course, is pitcher Andy Pettitte, who once viewed Roger Clemens as a brother. He's admitted using these drugs. He's viewed as a stand-up guy. He was - these two men trained together and Pettitte says that Clemens once admitted to him that he used HGH and Clemens doesn't dispute - he said - he doesn't say that Pettitte is lying. He says he either misheard him or misunderstood something that he said.

SIEGEL: Now, this Roger Clemens trial, take two, begins after a week of jury selection. What was going on?

TOTENBERG: Well, interestingly, a lot of the jurors who were dismissed for college said they thought it was a waste of the government's money to go forward with this. The ones who made it 16 in all, 12 jurors and four alternates and we don't know which are the alternates.

So the group of 16 includes nine African-Americans and seven whites, 10 women and six men. Among them a Treasury Department employee, an art historian, a program analyst with the D.C. government who loves to read Christian romance novels and bake but hates baseball, and a guy from the Nuclear Regulatory Commission. He used to live down the street from a house rented by Mickey Mantle and Roger Maris.

(SOUNDBITE OF LAUGHTER)

SIEGEL: Well, thank you for those details. NPR legal affairs correspondent Nina Totenberg on the trial of former major league pitching great Roger Clemens. Transcript provided by NPR, Copyright National Public Radio.