"You can't go anywhere with the government's case unless you have no reasonable doubt about Brian McNamee," Hardin told the jurors, then telling them McNamee lied to the government, to Mitchell Report investigators and to the prosecution, as well as to law-enforcement officials investigating a charge against him in Florida in 2001.
Following Hardin's opening statement, the government began its case against Clemens with Congressional staffer Phil Barnett explaining in great detail the background of why Clemens testified before Congress in 2008. Barnett's testimony lasted more than two hours before Walton put the trial into recess until Monday because he has an out-of-town commitment as an instructor at the National Judicial College in Reno, Nev.
Clemens, who won a record seven Cy Young Awards in his 24-year Major League career, is charged with one count of obstruction of Congress, three counts of making a false statement and two counts of perjury stemming from his February 2008 testimony and deposition before the House Committee on Oversight and Government Reform, during which he denied ever using performance-enhancing drugs. McNamee is the key witness against Clemens and provided the government with needles and medical waste the prosecution says substantiates the strength trainer's assertion before Congress that he injected Clemens with steroids and human-growth hormone on numerous occasions.
Barnett, who interviewed Clemens during his Feb. 8, 2008, deposition, went through with Assistant U.S. Attorney Steve Durham a detailed account of where the deposition and hearings were held and what authority Congress had to question Clemens. Barnett's testimony was stopped by the recess as various audio excerpts of the deposition were being played for the jury.
Earlier, Hardin began his opening statement saying he was disappointed that Durham had literally pointed the finger at his client in his opening statement the day before, using words like deceit, dishonesty and betrayal.
"We're here because a man dared to publicly deny that he committed a crime" and "in every form known to man" professed his innocence after being named as a user of steroids and HGH in the Mitchell Report on performance-enhancing drugs in baseball.
Hardin also broke down the 15-point obstruction of Congress charge, of which the government must prove just one to get a conviction, and said only four are really at issue in the case. His statement was interrupted four times by Durham's objections, the last time causing Hardin to shake his head and mutter when the objection was raised.
"Let me say this as nicely as I can: Much of what Mr. Durham told you [Monday] in many different incidences was only half the story," Hardin said to the jury.
By then, Hardin already had shown the jury photos of McNamee wearing a tie that had a logo for a supplement company, another one of him laughing in Stern's radio studio and, finally, a proposed cover jacket for an as-yet-unreleased McNamee memoir, "Three Constants in Life ... Death, Taxes and Mac," with the "X" in "Taxes" made of syringes.
Bringing out "the sharp knives" for McNamee, as Durham foretold jurors his opponent would, Hardin proceeded to show a different picture, literally, of the key evidence McNamee had kept for years that includes steroids and Clemens' DNA on it. McNamee kept gauze, cotton balls and syringes he says he used to give Clemens steroids stashed in an empty Miller Lite beer can from August 2001 until turning it over to federal authorities in early 2008 prior to the Congressional hearing. Clemens claims that all McNamee ever injected into him was vitamin B12 and lidocaine.
In the first attempt last July to try Clemens, which ended in a mistrial when the government showed the jury inadmissible evidence, a photo taken by federal agents of the medical waste and the beer can organized neatly within the frame was shown to the jury during the prosecution's opening statement. In Monday's opening statement, the prosecutors showed the jurors only tightly cropped photos of a needle and three cotton balls. Hardin, on the other hand, showed a photograph -- actually taken by members of McNamee's defense team, he said -- that had the beer can and medical waste strewn about in an unorganized fashion.
"Can I have the garbage again, please?" Hardin said in asking an associate to display the photo to the jury again. "It is the most mixed-up hodgepodge of garbage you could ever imagine," adding that it's "ludicrous" it could ever be evidence in a criminal case.
Hardin suggested the evidence was tainted by McNamee and touched on another hot issue -- whether the government should be pursuing a case like this. Introducing the subject by saying, "I'm not talking about government wasted resources, that's not my issue," Hardin displayed a graphic he used during the first trial of a map of the United States with icons spread around the country for each of the attempts to corroborate McNamee's story. Hardin pointed to the listing of 187 witnesses, 268 witness reports, 79 locations and, raising his voice, "103 federal law-enforcement officers on whether a baseball player used steroids."
Hardin, who said he and his client have no issues with Clemens' friend and Yankees pitcher Andy Pettitte, stumbled by saying that Clemens was born in 1982, not 1962. But he had the jurors smiling when he called himself Columbo while shuffling for notes, and he used softer tones at the end of his presentation, imploring the jurors to recognize that all Clemens ever has done is deny the allegations about him.
"Our government should never punish someone for trying to clear his name," Hardin said.
Before the jury came into the courtroom, Assistant U.S. Attorney Daniel Butler wanted to get on the record that Hardin had mistakenly -- and angrily -- said that Debbie Clemens, the defendant's wife, had been allowed in the courtroom last year, but this year was not going to be allowed inside during the trial. In fact, as a potential witness, Debbie Clemens was not allowed to watch the proceedings last year, either, as Butler pointed out.
"Your honor, counsel is absolutely right. . . . I misremembered," Hardin said, borrowing a famous line from Clemens' testimony before Congress. "The only thing I'd ask is you not charge me with perjury."