The prosecutor told jurors that they were the "final umpires" on Clemens' perjury trial.
Manuel Balce Ceneta/AP
The dozen Washingtonians who will decide Roger Clemens' fate heard a day of closing arguments stuffed with attention-getting sound bites. The eight women and four men who mostly care little about baseball then began deliberations Tuesday that will impact one of the most successful pitchers of his generation — and, in a way, the criminal pursuit of athletes accused of illegal doping.
"You," prosecutor Gil Guerrero told the jurors, "are the final umpires here."
They heard a clever line about Clemens being "a Cy Young baseball player" but not "a Cy Young witness." They heard the key witness called "a flawed man" who produced evidence from a "magic beer can." There were asked to debate whether it's "outrageous" that Clemens was charged in the first place, or whether it's a byproduct from Congress' "authority to protect the nation's youth."
Having digested the competing spins on 26 days of testimony by 46 witnesses, the jury met for some 15 minutes before being excused for the day at 5 p.m. They will reconvene Wednesday afternoon, then unless they reach a quick verdict, take off until Monday because of a long-scheduled out-of-town business trip by the judge.
Clemens is charged with perjury, making false statements and obstructing Congress when he testified at a deposition and at a nationally-televised hearing in February 2008. The heart of the charges center on his repeated denials that he used steroids and human growth hormone.
Clemens' chief accuser was his longtime strength coach, Brian McNamee, who spent more than a week on the stand and testified that he injected Clemens with both substances. But also essentially on trial was Congress' right to hold the hearings in the first place, and Clemens lawyer Rusty Hardin spent part of his closing statement appealing to the notion that the U.S. government was way out of line.
"What's happened in this case," Hardin said, "is a horrible, horrible overreach by the government and everyone involved."
Prosecutor Gil Guerrero argued that Congress had the right to care because major league baseball players are role models.
"They influence children. They influence kids. Congress has to be involved with that," Guerrero said in a packed federal courtroom that included Clemens' wife and four sons. "Congress has the authority to protect the nation's youth."
It's a debate that's timely following a pair of expensive Justice Department drugs-in-sports investigations that bore little fruit. More than seven years of probing yielded a guilty verdict on only one count of obstruction of justice last year against baseball's all-time home run leader, Barry Bonds. A two-year, multicontinent investigation of cyclist Lance Armstrong was recently closed with no charges brought.
The case against Clemens was far from tidy, relying heavily on a witness who carried a lot of personal baggage and physical evidence that sat for years inside a beer can. McNamee was the only person who testified to firsthand knowledge of Clemens using the drugs in question. McNamee said he injected Clemens with steroids in 1998, 2000 and 2001 and with HGH in 2000. He also said he saved the needle and other waste from a 2001 steroids injection of Clemens and stored it in and around a Miller Lite can and put it in a FedEx box. Some of the waste was shown to have Clemens' DNA and steroids on it.
Clemens' lawyers spent much of the trial attacking McNamee's credibility and integrity. McNamee acknowledged that details of his own story changed over the years, but he said that was partly because he initially tried to protect Clemens as much as possible.
"Saying that Brian McNamee lies zero times," Hardin said, "is kind of like calling the Grand Canyon a ditch."
Hardin produced a chart titled: "Brian McNamee's testimony is admittedly not credible." It listed more than two dozen times in which Hardin said McNamee either lied outright or said something that resulted from a "mistake" or "bad memory."
Guerrero readily conceded that McNamee is a "flawed man."
"We're not asking you to even like him," Guerrero said. "Brian McNamee did a lot of things that aren't nice, and we know that."
But, the prosecutor argued, that made McNamee the ideal partner for Clemens' alleged use of steroids and HGH, substances that Clemens wouldn't be able to receive from, say, a team doctor or head athletic trainer.
"Brian McNamee," Guerrero said, "would do whatever Roger Clemens wanted."
Clemens' lawyers repeatedly referred to the beer can evidence as "garbage" and did so again Tuesday. Hardin alleged the medical waste was manipulated by McNamee and contaminated by the way it was stored. Clemens lawyer Michael Attanasio also wondered how the "magic beer can" ended up containing waste from injections of other players.
"There's no doubt," Attanasio said, "the medical garbage is garbage."
But, the government argued, that only goes to show that McNamee didn't conjure up the evidence as part of some attempt to frame Clemens.
"If McNamee was trying to fabricate this evidence," Guerrero said, "don't you think he would have done a better job of it?"
When they left the courtroom to begin deliberations, the jurors were handed a complex verdict sheet that includes 13 Clemens statements that are alleged to have obstructed Congress. Hardin voiced outrage that the jury was being asked to make Clemens a convicted felon over some of the statements, including whether the pitcher was at teammate Jose Canseco's house on the day of a pool party in June 1998, an event the government called a "benchmark" days before McNamee's first injection of Clemens. McNamee said he saw Clemens talking with Canseco, who jurors heard was a steroids user.
"This is outrageous!" yelled Hardin, his face reddening as he pounded the podium three times.
Clemens said at his deposition that he wasn't at Canseco's house on the day of the party, but evidence at the trial showed that he was. U.S. District Judge Reggie Walton has said he had some concerns as to whether the party was relevant to the case. Either way, Hardin said some of Clemens' wayward statements to Congress simply came from a man trying his best to remember and shouldn't be a reason to return a guilty verdict.
"He's a Cy Young baseball player," Hardin said in reference to the award for pitching prowess. "Not a Cy Young witness. ... He's a human being just like everyone else in here."
The two sides disputed the validity of testimony of the two wives in the case. Debbie Clemens said McNamee injected her with HGH in her master bathroom in Houston without her husband's knowledge. McNamee said Roger Clemens was present for the shot.
Eileen McNamee confirmed parts of her husband's testimony: She said he told her at the time he was saving the medical waste for his own protection. But she contradicted other parts, including his assertion that he saved the beer can evidence to keep her from nagging him about being a possible fall guy in a steroids investigation.
Prosecutor Courtney Saleski said Eileen McNamee's motives are in question because the couple is going through a contentious divorce.
"Eileen McNamee," Saleski said, "is in self-protection mode."
Highlighting the scope of the FBI's investigation of Clemens, Hardin produced a map that showed the government conducting 235 interviews with 179 people involving 93 federal agents or officers — all in the name of trying to find more evidence that Clemens used steroids and HGH.
"Not one single blankety-blank piece of evidence after all of this effort. ... Not one single bit of evidence for 4 1/2 years of anybody other than Brian McNamee connecting Roger Clemens to steroids and HGH," Hardin said. "My God, if you're going to go to this kind of effort to prove this man lied to Congress, you'd better come home with some kind of bacon."
After Hardin's presentation, Clemens and the attorney embraced for several seconds, with Clemens patting the lawyer's back four times. Attanasio hugged Debbie Clemens a few feet away. Clemens, 49, walked down the hallway with his four sons in tow, one of the sons draping his arm around his father.
While the judge and jury will decide whether Clemens is guilty and goes to jail, the outcome will be irrelevant for many fans who've already decided that he cheated to maintain his success late in his career. Clemens himself told Congress at the 2008 hearing that "no matter what we discuss here today, I'm never going to have my named restored."
Hardin used that theme to take another dig at McNamee.
"This man's life and reputation," said Hardin, pointing at Clemens, "has been totally trashed because of Brian McNamee."