Posted: Tuesday May 15, 2012 4:56PM ; Updated: Tuesday May 15, 2012 5:17PM
Michael McCann
Michael McCann>SPORTS LAW

Crucial and contentious cross of McNamee vital in Clemens trial

Story Highlights

Brian McNamee will be pressed on details of his relationship with Roger Clemens

McNamee has said he injected Clemens with PEDs in 1998, 2000 and 2001

Clemens' lawyers are likely to try and discredit McNamee's personal credibility

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Brian McNamee
Brian McNamee is the key witness for the prosecution against seven-time Cy Young winner Roger Clemens.
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More than four years since he and Roger Clemens gave contradictory testimony to the House Committee on Oversight and Government Reform, Brian McNamee appeared before U.S. District Judge Reggie Walton over the last two days to answer questions from government prosecutors. In doing so, he provided the most pivotal testimony yet in U.S. v. Clemens. McNamee also set the table for a contentious showdown with Clemens' lawyers as they cross-examine him late this afternoon and into tomorrow.

Stylistically, McNamee's direct testimony was reminiscent of his testimony before Congress in 2008. He calmly insisted that he injected Clemens with steroids and human growth hormone, and that Clemens knew exactly what he was receiving. Substantively, McNamee offered a more detailed and plausible narrative of his dealings with Clemens, who McNamee portrayed in a mostly villainous light. McNamee, for instance, chronicled specific instances of when he allegedly injected Clemens and his wife, Debbie, and also revealed a purported email in which Clemens angrily told McNamee that he would go after anyone who tells on him. McNamee also depicted Clemens as aggressively dogging McNamee to inject him with steroids, almost like a drug addict needing a fix. McNamee also tried to explain away the apparent creepiness of him storing Clemens' used syringes and gauzes in his basement by revealing that his then-wife, Eileen, thought he should do so to protect himself.

The significance of McNamee to the trial cannot be overstated. He is the only person who can testify with supposed first-hand knowledge of Clemens using steroids and HGH. The next most intimate witness, Andy Pettitte, testified last week and could only offer a recollection of a conversation he had with Clemens from 12 years ago in which Clemens may have acknowledged using HGH. McNamee, in other words, is the government's case.

If jurors firmly believe McNamee, they will likely convict Clemens of perjury, regardless of how they evaluate the other witnesses and evidence. Clemens, in such a scenario, must have knowingly lied when flatly asserting that he never received steroids or HGH and that McNamee only injected him with legal substances (vitamin B-12 and Lidocaine). For jurors to believe McNamee and not convict Clemens would require them to deduce that Clemens -- a world-class athlete -- somehow didn't understand the contents of his trainer's injections, which occurred repeatedly in 1998, 2000 and 2001, and thus did not "knowingly" lie under oath. If that sounds hard to believe, it is.

While McNamee rose to the occasion, keep in mind it was only in response to direct examination by government prosecutors. These prosecutors obviously wanted McNamee to appear credible and persuasive, and thus constructed their questions to make McNamee as comfortable as possible. Along those lines, McNamee clearly knew the types of questions he would be asked and had months to prepare for them. While he didn't drop the ball, it wasn't exactly a difficult ball to catch.

Cross-examination could be a different story. McNamee will have to answer questions from Clemens' lawyers, who know they must discredit McNamee and undermine his testimony. They will make sure jurors question McNamee's recollection of facts, the manner in which he stored incriminating syringes and gauzes, his motivations for implicating Clemens and his character. McNamee is no stranger to skeptical questioning while under oath. Four years ago he effectively answered questions from doubting members of Congress.

But with all due respect to those politicians, answering questions posed by seasoned defense lawyers is completely different. These lawyers are in the business of making government witnesses seem confused or hypocritical, and their questions will be tailored to make McNamee as uncomfortable as possible. Clemens' legal team has already succeeded in cross examining a witness -- attorney Michael Attanasio led Pettitte to admit to uncertainty about what Clemens told him 12 years ago, thus limiting the incriminating power of Pettitte's testimony.

Strategically, expect the cross-examination of McNamee to make four core points: 1) either intentionally or because of memory limitations, McNamee has wrongly recalled the past; 2) McNamee has implicated Clemens in order to save himself from prosecution; 3) McNamee failed to store the implicating evidence in a secure and tamper-proof facility; and 4) McNamee has a record of lying and dishonest conduct and thus jurors should not trust him.

To advance these points, look for Clemens' attorneys to find contradictions in McNamee's testimony from his earlier statements. Even seemingly minor contradictions, such as in dates of events or names of non-essential persons present, will be exploited to frame McNamee as unreliable. They will also question why McNamee is the only person on Earth to have seen the highly-recognizable and attention-seizing Clemens take steroids and HGH. Also expect McNamee to be forced to explain his motivations for telling law enforcement authorities and Major League Baseball officials about his relationship with Clemens. Along those lines, McNamee will undoubtedly be asked about the proffer agreement he signed with law enforcement in 2006. The agreement ensured that McNamee would avoid prosecution so long as he revealed his knowledge about baseball players using steroids. Expect Clemens' lawyers to imply that McNamee, at risk of being prosecuted, had to make noteworthy revelations to authorities even if it meant stretching the truth.

While on direct examination McNamee tried to paint his then-wife as the reason for storing used syringes and gauzes. Clemens' lawyers will likely wonder why McNamee would store such important materials in a beer can and Fed Ex box. After-all, if the materials would really protect McNamee, would he not seek more secure and reliable storage? McNamee will also be forced to explain whether anyone could have tampered with the incriminating materials, such as other persons who may have entered his basement. Clemens' lawyers will want jurors to ask themselves if they can honestly rely on such evidence to convict a person who might then be sent to prison.

Clemens' lawyers will also aggressively batter McNamee's judgment. Judge Walton, in assessing whether certain aspects of McNamee's background are more probative to the trial than prejudicial to McNamee, has allowed Clemens' lawyers to highlight that McNamee has been twice convicted for driving under the influence and that he was the target of a "serious criminal investigation" (jurors are barred from hearing the investigation involved the alleged sexual assault of a woman with the date-rape drug in her system). Jurors will also learn that McNamee made false statements to the police and that he sidestepped prescriptions for prescription drugs. Clemens' lawyers hope that when jurors deliberate, they will regard McNamee as someone willing to lie to authorities, to disregard the law and to endanger public safety. Prosecutors hope they instead view McNamee as a flawed but improving person whose past missteps are irrelevant to whether Clemens knowingly lied under oath.

If McNamee excels during cross-examination, Clemens' legal team may have no choice but to call Clemens to the stand and ask him to rebut McNamee's account. It would be a risky maneuver, since Clemens would have to also face cross-examination. His bravado and often inflexible choice of words could doom him when facing crafty questions from prosecutors. But not letting Clemens testify could also be major blunder and would be highlighted in the event he is convicted. McNamee's testimony on cross-examination, in other words, could be the trial's game changer.

The government can still obtain a conviction of Clemens without the jury fully believing McNamee. In addition to perjury and false statement counts, Clemens is also defending against a count for obstruction of Congress. The charge refers to impeding and interfering with a Congressional investigation. It is plausible that jurors could reason that the government did not prove that Clemens knowingly lied under oath, but nonetheless showed that Clemens' interactions with the investigation were sufficiently misleading or distortive to warrant an obstruction conviction. While Clemens would face a maximum of five years in prison for such a conviction, Judge Walton could decline to impose any prison time and instead impose probation, community service and house arrest -- just like that assigned to Barry Bonds, who was likewise convicted on obstruction charges.

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV's On-Air Legal Analyst. Follow him on Twitter.

 
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