It’s a sticky Tuesday morning in Washington, D.C., and jurors who’ve suffered through the first seven weeks of these proceedings settle into their assigned seats in Courtroom 16 of the Federal District Courthouse. Another day, another $40 stipend (taxable), plus seven bucks for transportation allowance (tax-free) to cover the sweaty Metro ride to Judiciary Square.
As far as jury duty goes, you might think the perjury trial of the most decorated pitcher in baseball history would be the kind of blockbuster assignment you tell your grandchildren about. But if you’re enough of a baseball fan to recognize Roger Clemens, you would have been booted out of the pool in short order. The ladies and gentleman of this jury have been carefully selected on the basis of their ambivalence toward the nation’s pastime. That’s why witnesses must pause to define elementary baseball nomenclature like “foul pole.” To clarify what it means for an athlete to be “in the zone.” To explain that the game is played both indoors and outdoors, and that Fenway Park is home to the Boston Red Sox.
So you can begin to see why two jurors have already been dismissed for napping during testimony. Only 13 remain, and Judge Reggie Walton is determined not to lose another. The survivors have been encouraged to take advantage of the complimentary coffee in the jury lounge, for the defense is expected to argue deep into June. Judge Walton has repeatedly warned counsel on both sides to quicken the pace, quoting Shakespeare (“Thou doth protest too much”) to hurry the lawyers along.
This morning a hefty investment banker with a Brooklyn accent is testifying that his former personal trainer once admitted to giving human growth hormone (HGH) to several pro ballplayers, including the Rocket. Nearly every 10 minutes the examination grinds to a halt so that representatives from both legal teams can approach Judge Walton to discuss the line of questioning. To keep jurors, witnesses and observers from being privy to these bench conferences, obnoxious static is pumped through the overhead speakers. Meanwhile, the court reporters, the defendant and the leftover attorneys don special headphones tuned to the bench microphone. In this way, at the push of a button, the courtroom is cleaved into two groups: People who can hear what the hell is going on, and people who are being subjected to incessant noise.
In the witness box, the banker under cross-examination checks his watch, arms across his chest. He’s only had to endure these bench conferences for a couple of days, and clearly he’s already had enough to last a lifetime. Two resourceful jurors crack open paperbacks. A young man in the front row pulls a tablet from his folder and taps away at some app while the juror next to him watches over his shoulder, eager for any distraction. The remaining jurors gaze into the polished oak walls as the static washes over them.
Observers and reporters use these conferences to make small talk, compare notes or break for the hallway. The freedom to exit the room at will feels like a luxury. Now and then when the courtroom doors swing open, you see a juror glance over longingly as if he might hitch a piggyback ride out to Constitution Avenue.
Still, if I ever find myself facing federal charges, I’d want to be tried before a jury like this one. It’s a beautiful American jury, straight from a law textbook, diverse in age, race and gender. They look like fair, upstanding citizens who have chosen nice outfits befitting the gravitas of a courthouse. They did nothing to deserve this. They were randomly selected by a computer system to take part in what the court’s website describes as “one of the most meaningful experiences available to a United States citizen.” After being sifted through a lengthy selection process, these chosen few are being forced under threat of fine or imprisonment to spend the best hours of the finest days of spring sitting at attention in this adequately lit, immaculately vacuumed courtroom.
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To a juror who’s never heard of the Rocket, Roger Clemens probably looks like a giant lawyer. He keeps his headphones close at hand and listens attentively to every bench conference. He appears to be a fastidious note taker, although he keeps his pages hidden from the gallery and might be playing Sudoku. He is the only person in the courtroom who never yawns. To a lifelong baseball fan, it’s uncanny to see the Rocket stuffed into a suit and forced to sit still for hours at a time. We’re used to him fired up on the pitcher’s mound, all 6-foot-4, 230 pounds of Texas beef, delivering fastballs high and inside.
You don’t need statistics to describe how Roger Clemens played the game. In baseball, a strikeout is recorded in score books as a K, and this is a guy so obsessed with striking batters out that he named his four sons Koby, Kory, Kacy and Kody. In 1986, when Clemens won his first of seven Cy Young awards and the American League MVP, home run king Hank Aaron suggested the award shouldn’t go to pitchers. Clemens’ response: “I wish he were still playing. I’d probably crack his head open to show him how valuable I was.” After becoming a Red Sox legend, he would go on to pitch for the Toronto Blue Jays, the New York Yankees and the Houston Astros before concluding his career with the Yanks. Yankees trainer Steve Donahue once described Clemens’ pre-game routine, in which the Rocket would take a scorching whirlpool bath, then have the hottest possible muscle liniment applied to his nuts. “He’d start snorting like a bull,” Donahue told sportswriter Tom Verducci. “That’s when he was ready to pitch.”
By 2007, when Clemens was 45 years old, he remained one of the most dominant pitchers in the game at an age when most pros have retired to the sports convention circuit. That year the New York Yankees signed him for a one-year contract of $28,000,022 – the last two numbers corresponding with his jersey number. Even though he only played a pro-rated partial season, the contract valued him at roughly $9,100 per pitch.
Clemens better have managed that money well. His attorneys and investigators spill from the courtroom floor into the first two rows of the gallery, and judging from their suits, Team Rocket doesn’t come cheap.
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“There are massive resources on the side of the prosecution and the defense,” says Lester Munson, a legal analyst for ESPN. Munson has seen plenty of athletes on trial, including Mike Tyson, Michael Vick and Ben Roethlisberger. “Rarely do you see a prosecution this deep,” he says. “Five lawyers, three agents, two paralegals. The typical pattern in a celebrity athlete case is that the prosecution is overwhelmed. They’ve shown that they’re ready, they have the manpower.”
Uncle Sam has placed a huge bet on a conviction. According to Munson’s numbers, 103 agents interviewed 187 witnesses in 79 locations to generate 268 official reports for this case. The prosecution moves with the utmost care to avoid a repeat of last summer’s mistrial, declared on the basis of inadmissible evidence presented to the jury. Given the jury’s lack of interest in baseball, the government has an opportunity to invent the story of Roger Clemens from scratch. Their basic pitch is that Clemens was a ferociously competitive athlete who grew desperate for ways to regain his competitive edge as his aging body broke down.
The man in charge of painting this portrait is Assistant United States Attorney Steven Durham, a gentleman who looks like he has a permanent case of bitter beer face. He sits with his fellow prosecutors and FBI investigators at a table mid-courtroom, flanked by giant three-ring binders full of documentary evidence. During periodic 10-minute breaks, a paralegal wheels a cart of fresh folders into the room. Over 19 days of testimony, the prosecution has called 24 witnesses, including Clemens’ former teammate, protégé and close friend Andy Pettitte, who previously told investigators that Clemens once admitted to using HGH. Their star witness is the strength trainer who allegedly injected Clemens in the ass, Brian McNamee, who worked with Clemens for more than 10 years and later named him in the 2007 Mitchell Report on steroids in baseball. In a 2008 House hearing and deposition, McNamee testified that he injected Clemens with performance enhancing drugs in 1998, 2000 and 2001. Seated just a few feet away on the House floor, Clemens vehemently denied those claims, which led to his indictment for lying to Congress.
The critical evidence in the case is an assortment of vials, syringes and cotton balls that McNamee claims to have saved from a steroid injection that took place in 2001. McNamee testified that his wife warned, “You’re going to go down!” without some kind of leverage against Clemens (she has denied that), so McNamee snuck the evidence out of Clemens’ apartment in a Miller Lite beer can and stashed it in a FedEx box in his garage. Now, after extensive DNA analysis in FBI laboratories, the evidence has come to light as Government Exhibits 52 A-Z, or as the defense refers to it, “a mix-up hodgepodge of garbage.” Yet prosecutors are sparing no expense to prove that this is a damning hodgepodge for Clemens, questioning expert witnesses about bodily fluids (“I want to talk to you a little about pus …” and even summoning a Miller-Coors executive to testify that the code on the beer can proves it was in circulation in 2000-2001. (In a marketing coup, the executive assured the courtroom: “We want consumers to enjoy the great taste of Miller Lite while it’s still fresh.”)
Two weeks ago, McNamee spent 26 hours on the stand, looking less like a strength coach and more like a pasty, broken man. Apparently the whole Clemens ordeal has cost him his marriage, his family and his health. He described a “creepy” bedroom scene in the Clemens’ Texas home. As McNamee prepared to inject Debbie Clemens near the belly button, he said, she looked at her husband and said, “I can’t believe you’re going to let him do this to me.” McNamee said that the Rocket responded, “He injects me, why can’t he inject you?” (Debbie Clemens has since denied this in her testimony.)
McNamee apologized to the jury for taking frequent breaks during his testimony, a consequence of his Type 1 diabetes. He uses an insulin pump, particularly when under stress, such as when you’re enduring 13 hours of brutal character attacks by Clemens’ lead counsel, all-star Houston attorney Rusty Hardin, widely acknowledged as one of the most skilled trial lawyers in the country.
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In 2003, the Houston Chronicle anointed Rusty Hardin “The Attorney to Hire When You’re in Trouble.” Rusty is most famous for defending Enron accounting firm Arthur Anderson, but he’s also found a profitable niche defending athletes like Scottie Pippen, Wade Boggs and Warren Moon. A kindly septuagenarian who speaks with a drawl and a whistle through his teeth, Rusty wears light-colored suits to distinguish himself from his dark-clad federal competition. He begins cross-examinations by thanking witnesses for “making the trip down” and reminding them to speak carefully to make things easy on the court reporter. Then, in the voice of a slightly-upset grandfather, he eviscerates them query by query, managing to sneak in questions that seem objectionable even to someone with no legal expertise, questions like, “You weren’t intentionally lying to us, were you?” — questions that at times leave prosecutors sifting about their table as if they might be able to stop him if they find the right legal pad.
Just as the Rocket couldn’t have won all those games without help from his teammates, Rusty has solid backup, a crew of immaculately groomed attorneys and investigators who routinely pass him Post-it notes and folded pages of critical info that he weaves fluidly into his cross-examination. Even the members of Team Rocket who sit in the gallery seem to be fulfilling some purpose by looking expensive and ready to rumble. Consider Jeremy Monthy, a Yale undergrad, University of Texas J.D., who is described on the firm’s website as: “A baseball fanatic and quite possibly the only lawyer in Houston who keeps a baseball bat in his office that he fondly holds while pondering weighty legal issues.” Team Rocket is the kind of crew that has a guy like Jeremy Monthy warming the bench. Just as one witness described Roger Clemens as a “mother duckling” who helped young players develop, it seems like these young attorneys are learning from the best by watching Rusty at work. They will someday have practices of their own, defending athletes and allegedly unscrupulous accountants.
Now and then when Rusty passes near his opponent Mr. Durham, he gives a wink ‘n’ smirk that seems to say “You and I both know I’m going to win this case, and P.S., give my best to your mom.” At one point, when prosecutor Gil Guerrero struggles to refute one of Judge Walton’s arguments, Rusty advises the young attorney: “Just say yes.” There must be a German term to describe this sensation: When Rusty is speaking, I pay more attention, and I’d be willing to bet the jury does, too.
As you’d expect in a trial where the principle events took place more than a decade ago, distant memories play a huge role in many testimonies, and one of Rusty’s core competencies is getting prosecution witnesses to admit that, well, shucks, memory is fallible. One key question in the case is whether Clemens attended a pool party at the home of former Blue Jays teammate and steroid-magnet Jose Canseco in 1998. The prosecution is relying on the testimony of 25-year old Alexander Lowrey, who met heroes Clemens and Canseco at the pool party back when he was a baseball-obsessed 11-year-old.
“I was ecstatic,” Lowrey testified. “It’s not every day you’re around professional baseball players.” Common sense dictates that a barbecue with famous baseball players would be grilled into an 11-year-old’s memory for life, and indeed, Lowrey remembers a lot from that day, including a tour of Canseco’s house weight room and gym, and a game of Wiffle ball with Clemens’ son Koby. Yet Rusty is disinclined to put much stock in memories that don’t help his case, so he chips away at the poor kid, chips away until, well, maybe, chips away until, umm, well, chips away until – there it is – the beautiful glimmer of reasonable doubt.
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There hasn’t been a media frenzy around the Clemens retrial, but rest assured, if there should ever be a reason to grow frenzied, plenty of media is on hand. Perhaps it’s because this is a second trial and many of the most scandalous facts have been revealed in previous depositions. Perhaps it’s because the rules of the federal courthouse are so tight with regards to cameras, phones and recording devices that the story is visually barren aside from daily snapshots of Clemens signing autographs for fans outside. Even food and drink in the courtroom is strictly forbidden. (NPR legal affairs correspondent Nina Totenberg was reportedly dismissed from the court on May 16 for eating BBQ chips as a morning snack.)
Reporters are present from the Associated Press, ESPN, the Washington Post, USA Today, the New York Daily News, and the Houston Chronicle and Newsday, among others. This is the thrumming nerve center of the Roger Clemens trial Twitterverse. Some of these reporters have been following Clemens for years, and this trial is the culmination of thousands of steroid stories. A 2008 interview between Clemens’ catcher Darrin Fletcher and Newsday’s Jim Baumbach will actually be cited during testimony, although Fletcher will deny recollecting the conversation. Alas, despite the sense of purpose in the press room, the story seems to be drifting deeper and deeper into the sports section.
“It feels almost like an anachronism,” says ESPN reporter T.J. Quinn, who periodically steps outside to make “SportsCenter” updates by phone. “A year ago, there was a ton of attention. It was right after [Barry] Bonds. Now the world has moved on. The urgency and immediacy seem to have passed.”
If there is a sense of urgency this time around, it seems to be to get the trial moving along at a brisker pace before more jurors fall asleep.
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As lunchtime nears, jurors steal glances at the clock. When Judge Walton calls for recess, a procession heads downstairs to the courthouse cafeteria, checking phones at long last. Lunch recess is more than an hour long, but it still feels too short. In the annex, a group of elementary school kids line up near the drinking fountain, preparing for their tour. The dining amenities are something like a robust hospital cafeteria: a sandwich bar, a rotating selection of hot items like fish and chips, burgers hot off the grill, a decent salad bar with fresh vegetables, pre-packaged sushi on Tuesdays and Thursdays, and beginning this week, an ice cream sundae bar every Wednesday. Prices are reasonable, especially relative to the cost of legal defense at the federal level, and your average juror could probably eat well and still pocket $30 of her $40 daily stipend, perhaps more if she relied on coffee in the jurors lounge.
Folks carry cardboard food trays into a sunny atrium overlooking the Capitol. In this air-conditioned bubble it’s easy to forget that outside it’s muggy and miserable. It seems like we shouldn’t all be allowed to sit around so casually after the fierce “all rise” decorum of the proceedings, but here we all are, enjoying a little natural light after spending several hours trapped together in the artificially lit courtroom. Clemens sits at the head of a table near the windows, toying with his phone, surrounded by Team Rocket. Rusty drifts around, chatting here or there at other tables, tie tucked into his shirt, an extra precaution because the other day he spilled coffee on himself and had to appear in court without his jacket.
If it was hard to stay awake before, it’s even more difficult after lunch on a full stomach. This afternoon we hear from FBI DNA expert Eric Pokorak who describes the difference between mitochondrial DNA (from the mother) and nuclear DNA (from the mother and father), and the buckle swab reference samples the FBI used to compare DNA information from the beer can McNamee saved. He tells us that “Saliva is a rich source of DNA,” and pictures of the infamous Miller Lite can appear on the courtroom monitor and on the little monitors in the jury box. He handles cross-examination like a champ and seems genuinely sad to leave the witness box, as if he spent his Memorial Day weekend telling friends he would be testifying at the Clemens trial on Tuesday, and now he’s kind of bummed it’s over so quickly. FBI toxicologist Cynthia Morris-Kukoski follows. One of Clemens main defenses is that he received liquid vitamin B12 injections from McNamee – not steroids or HGH – so Morris-Kukoski is here to testify about the various types of vitamin B12. She holds up a bottle of B12 and a syringe full of the red liquid and explains the difference between B12, cyanocobalamin, and B12A, hydroxocobalamin, which the government didn’t test for because it isn’t commonly found in the United States. These expert testimonies are polished and informative. Unlike most witnesses, the academics speak directly to the jury, and the jury seems thankful to have someone acknowledge their presence in the room. Yet the sheer amount of effort put into the investigation seems to underscore one of the defense’s implicit arguments: This entire case has been a monumental waste of resources. How many other rich pools of saliva could Mr. Pokorak have compared to buckle swab reference samples? What other toxins of federal interest could Mrs. Morris-Kukoski have analyzed? How much did all this cost? Around 2:30 p.m., in an effort to keep from falling asleep, I study the jury to see if any of them are falling asleep. At 2:54 p.m., a woman in the back row begins to drift. Would an injection of B12 cyanocobalamin keep us awake?
When the prosecution finishes its brief redirect of Morris-Kukoski, Judge Walton asks for the jury’s questions. He is rare among federal judges in his belief that allowing jurors to ask questions keeps them engaged, while also offering lawyers a brief glimpse into what the jury is thinking. Jurors submit the questions on index cards, Walton and the lawyers screen them, and he asks the questions he deems pertinent. If anything bolstered my faith in the judicial branch, it’s these reliably insightful questions submitted by the jury. Despite the weary look on their faces, they have indeed been listening carefully, questioning even minute details like the tiny letters IM and SC on the side of Mrs. Morris-Kukoski’s vial of cyanocobalamin. Perhaps I’ve overestimated their fatigue, or perhaps in their free time in the jury lounge they’ve developed a rotating system in which one of them pays close attention while the others are allowed to drift off.
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Now it’s Rusty’s turn. Over the week, breakneck speed in the context of this trial, he promises to present the Rocket’s side of the story in court for the first time. Forget everything the prosecution had to say about Roger Clemens. Rusty wants to take us back, way back to Houston, Texas, 1980. Rusty wants to make myth, beginning with his first witness, Todd Howey.
Howey was a sophomore on the Spring Wood High School baseball squad when Roger Clemens was a senior on the team, an average pitcher at best, kind of pudgy actually. Yet when Howey and his teammates would drive around on Friday nights looking for trouble, they would notice the stadium lights aglow over their home field. Who in hell would be out there at this hour? Lo, it’s ol’ Roger, running from foul pole to foul pole across the diamond, a route he ran so often it carved a visible path across the outfield.
“It was like a cow trail through a pasture,” Howey says. “We called it ‘Roger’s Trail.’”
Roger’s Trail. It has a nice ring to it, and Roger’s Trail is exactly what Rusty wants the jury to think about when they think about Roger Clemens. No complicated DNA evidence. No toxicology reports or paper trails. Here’s a damn good American story, an average athlete who made himself great through force of will and a combination of diet and exercise. “Roger had already won the Cy Young Award in his mind in the 10th grade,” Howey says.
By the end of the day’s testimony, the trial is pointed in a new direction. Rusty will showcase a parade of ballplayers and other baseball professionals who are willing to help him reconstruct the myth of the Rocket. Beginning the next morning, the trial almost becomes an episode of “This Is Your Life,” voices from the Rocket’s past telling old stories. Michael Lee Capel, Clemens’ opponent in high school, and later a college teammate, testifies that by the time Clemens arrived at the University of Texas, he’d lost his baby fat and was a flame-throwing college power pitcher, always running or lifting, never the kind of guy “to take the easy way out.”
The jurors seem visibly more engaged, listening to folksy tales of baseball yesteryear. It’s probably the most interesting stuff they’ve heard in weeks. Apparently the Rocket was too busy working out, honing his craft and bringing smiles to the faces of sick kids to inject anything into his ass — except perfectly legal doses of liquid vitamin B12 cyanocobalamin. During cross-examination, the prosecution tries to prove that Clemens’ need for late-season stamina is a result of the heat and humidity by asking inane questions like “In the summer, would you agree, the temperature rises?” Prosecutor Gil Guerrero thinks he’s landed a punch when he points out that Clemens’ innings pitched fell off in 1994, but unfortunately he seems unaware that a strike in 1994 resulted in the season being canceled. At last, flummoxed, he asks the witness: “You understand he’s not on trial for how great he was in baseball?”
While the prosecution spent entire days probing a single pool party, Rusty spends a single morning bringing the jury from Clemens’ high school career all the way up to the years surrounding the steroid allegations. He calls witnesses who worked more closely with Clemens than almost anyone else – his catchers. Charlie O’Brien is summoned from his ranch in Tulsa, Okla., appearing on the stand in a mullet and a pink shirt. O’Brien knows a thing or two about good pitchers, having caught four Cy Young Award winners in a row, including two seasons with Greg Maddux, and a season with Pat Hentgen and Clemens in Toronto. He corroborates Clemens’ story that the team doctor would have guys line up to receive B12 shots. When the prosecution asks him to confirm the color, O’Brien says, “I didn’t get a good look at it. I was bent over, usually turned over.” He directly contradicts the prosecution’s argument that Clemens would do anything to win. He says he even tried to offer the Rocket doctored baseballs. When umpires weren’t looking, O’Brien would scuff-up baseballs against his metal shin guard to give them imperfections that would help the ball move more. The Rocket would never take one. He didn’t need it. “I don’t think he would cheat,” O’Brien says. “At all. Ever.”
During cross-examination, it becomes clear that the prosecution doesn’t understand the culture of baseball, that they think they can crack the fraternity of Major League Baseball. Hoping to prove that O’Brien is simply a Clemens loyalist here to defend a teammate he reveres, Mr. Durham tries to get O’Brien to admit that it was an honor to catch the great Rocket. “I wouldn’t use the word ‘honor,’” O’Brien says, trying to emphasize their equality as teammates. “It’s a privilege … He was better in 1997 because he was with me.” The prosecution asks how he can reconcile that opinion with the fact that Clemens once told “60 Minutes” that he would eat the anti-inflammatory Vioxx “like Skittles.” O’Brien doesn’t see anything out of the ordinary. “I ate Naprosyn like Skittles,” he says. “Not Skittles. M&Ms, maybe. I don’t like Skittles.” The joke gets a chuckle from the courtroom, but not out of Durham, who impatiently reminds the witness what’s at stake here.
By the time Clemens’ other catcher Darrin Fletcher appears in the witness box, the direct examinations have taken a cozy feel. Fletcher begins his responses with, “Well, Rusty,” as if he were a baseball analyst describing Clemens’ incredible work ethic. At times it looks like he’s having fun up there. When the prosecution asks whether he’d seen Clemens at the Canseco pool party, Fletcher quips: “I’ve always wanted to see Roger in a bathing suit.” When the prosecution asks questions about the weather, Fletcher flat out asks: “Where are you going with this?” When he reveals the intricate system of signs he and Clemens would use to keep track of pitches, Fletcher jokes directly to Clemens: “You’re not making a comeback are you, Roger? I’m not giving anything away?”
The prosecution senses an opening: “So Mr. Clemens could keep a secret?”
“Yeah,” Fletcher says, “but I’m in on it.”
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“Of course, lots of people lie to Congress and don’t get charged,” says Nathaniel Vinton, who co-authored a book on Clemens, “American Icon: The Fall of Roger Clemens and the Rise of Steroids in America’s Pastime.” “But how many leave behind such a long paper trail? Let alone bloodstained, steroid-laced medical waste?”
In two to four weeks, we ought to know whether the Rocket will see prison time. Given his clean criminal history, experts expect at worse he could be sentenced to 15-21 months in prison. According to Vinton, the best-case scenario for Clemens is an acquittal that not only saves him from prison, but also from losing the defamation suit filed by Brian McNamee. If Clemens loses the criminal trial here, it could help McNamee win the defamation suit, which seeks to recover McNamee’s attorney fees, a painful prospect for Clemens. Still, how foreboding can a courthouse feel when you sign autographs before and after you leave the building?
But the retrial will grind on, long into the summer, long after school is out and the field trips end. If these elementary school kids were to drop by Courtroom 16 this afternoon, they would see a clutch of lawyers arguing at the bench, a jury dazed by white noise that muddles everything. They would see a wrinkled American flag drooping over the witness stand, and a U.S. Marshal leaning against the wall, yawning.