July 14 (Bloomberg) -- Roger Clemens wasn’t going to be portrayed as a victim at his trial for allegedly lying to Congress about using steroids, the ex-Major League Baseball pitcher’s lead defense lawyer told a federal jury in Washington.
In the hour that followed, attorney Rusty Hardin did precisely that. During his opening statement yesterday, he said a congressional committee set up the former New York Yankees pitcher.
“When he said publicly, ‘I did not do it,’ Congress called him in and dared him to say what they knew he was going to say under oath, and then charged him with perjury when he said it,” Hardin said.
Clemens, 48, who was only trying to tell the truth, also was “betrayed” by his longtime trainer, Hardin said.
Clemens, who was recognized as his league’s best pitcher in an unmatched seven seasons, is on trial for perjury and obstruction of Congress because he told the committee in 2008 that he didn’t use anabolic steroids or human growth hormone, as alleged by his trainer. He isn’t charged with illegal drug use, which allegedly occurred too long ago to prosecute.
“Hardin is gambling that the jury will be sympathetic to Clemens as a victim of congressional over-reaching,” Robert Weisberg, who teaches criminal law at Stanford University, said in a phone interview.
“Clemens does not offer a very convincing picture of a beleaguered victim,” Weisberg said.
Fans may remember Clemens flinging a broken bat at Mets catcher Mike Piazza during the 2000 World Series, or how he directed 95-mile-an-hour fastballs close to batters’ bodies. Domination is what Clemens, known as the Rocket, was all about.
Few jurors may know that. Most said during jury selection that they don’t follow baseball.
Hardin, a former prosecutor and longtime private lawyer in Houston whose criminal defense clients have included Warren Moon and Calvin Murphy -- both acquitted -- set out a sequence of events with Clemens portrayed as a victim.
While Clemens may be disliked in some quarters, the U.S. Congress, according to Gallup Inc., has only an 18 percent approval rating.
Weisberg said the case will probably turn on the credibility of the trainer, Brian McNamee, which will depend on how much the government can corroborate his testimony.
Assistant U.S. Attorney Steven Durham, in his opening remarks, told jurors that McNamee can give details about when and where he injected Clemens with the forbidden substances and that there is circumstantial evidence to back him up.
McNamee also gave cotton swabs and needles to the U.S., which hired independent laboratories to test them. What they found was Clemens’s DNA as well as anabolic steroids, Durham said.
McNamee fabricated the evidence, Hardin countered.
The only accuser Hardin didn’t attack was Clemens’s former teammate, Andy Pettitte, who told Congress that his friend had admitted using human growth hormone. Pettitte just made an honest mistake and didn’t recall the conversation correctly, Hardin said.
Durham described Clemens as an athlete worried about his aging body, substantial income and place in the Baseball Hall of Fame.
The prosecutor also headed off criticism of Congress. The committee got involved in the issue of drugs in baseball because it was “deeply concerned” about how young fans would react if Major Leaguers were using these substances, Durham said. Lawmakers wanted to “protect these younger people from dangerous drugs and dangerous influences,” he said.
He said Congress had already told Major League Baseball to either straighten itself out or risk Congress passing laws that would impose changes. So the baseball commissioner, Bud Selig, hired former Senator George Mitchell to investigate, which led to a 409-page report in 2007 naming Clemens and others as users of banned substances.
When Clemens went on CBS News’s “60 Minutes” program, produced a YouTube video and held a press conference to denounce Mitchell’s findings, the House committee had to find out who was right, Durham said.
Near the end of his opening remarks, Hardin put a poster on an easel facing jurors. The same image appeared on computer screens around the courtroom.
“These are the resources the government used” to build the criminal case against his client, Hardin said. The chart showed 103 law enforcement officers working in 72 places across the U.S., producing 229 investigative reports.
None of that effort produced anyone who could back McNamee’s claim that Clemens had used steroids and HGH, Hardin said.
Weisberg, the law professor, said congressional over-reach is irrelevant to whether Clemens lied.
“The claim of unfairness is really not going to prove very important,” Weisberg said.
The question is whether Clemens lied when he denied using the banned drugs. Hardin’s task is to at least create reasonable doubt that he did.
The case is U.S. v. Clemens, 10-cr-00223, U.S. District Court, District of Columbia (Washington).
--With assistance from Tom Schoenberg in Washington. Editors: Andrew Dunn, Peter Blumberg
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