Through much of the afternoon, defense attorney Rusty Hardin endeavored to take jurors through a different portrayal of the evidence -- or the "stuff," as Hardin repeatedly called it -- and the chain of custody of that evidence before Novitzky received it. Following a long series of questions about what Novitzky knew about the evidence before he took custody of it at the office of McNamee's attorney, Richard Emery, Novitzky eventually testified he could not personally attest to the condition of the evidence before he received it.
In between the direct and cross of Novitzky, it was revealed that McNamee will take the stand early next week.
Judge Reggie Walton said that motions by the lawyers for McNamee and his ex-wife to quash a subpoena issued by Clemens' attorneys for access to divorce records would need to be ruled upon before McNamee testifies. Walton has asked for defense responses to the motions to quash the subpoena to be submitted over the weekend, and Durham said at the end of Thursday's proceedings that he did not expect to call McNamee until Tuesday.
Clemens is being tried on six federal charges of perjury, giving false statements and obstruction of Congress stemming from his Feb. 5, 2008, deposition and his Feb. 13, 2008, appearance before the House Committee on Oversight and Government Reform, during which he denied ever using performance-enhancing drugs.
McNamee testified before Congress that he injected Clemens with steroids and human growth hormone on numerous occasions, and the physical evidence is a key aspect of the government's case.
Novitzky, now an agent for the Food and Drug Administration but then an agent for the Internal Revenue Services' criminal investigations division, began his direct testimony Wednesday and continued Thursday, making a point to look at the jury panel while giving his answers. A tall man with a shaved head and a deep, clear voice, Novitzky identified all the evidence as materials he received from McNamee via Emery at Emery's New York City office.
Novitzky received the evidence approximately six months after he first met with McNamee and informed him that he wanted to talk to him about his role in the distribution of performance-enhancing drugs. The transfer of evidence took place about a month before the House committee hearing was held.
Along with identifying the numerous items via photos, Novitzky identified the materials that were packaged by him and other agents sent to the Federal Bureau of Investigation and the independent Forensic Science Associates laboratory for testing, including testing for DNA. Novitzky testified the items included needles, syringes, vials of serotonin (a type of human growth hormone) and Deca durobulin (a brand of the steroid nandrolone), and an empty ampoule (or small glass tube which is typically broken to access the fluid inside) of the steroid Primobolan. The materials also included three cotton balls that appeared to be stained.
The government intends to show that the physical evidence was determined in testing to include steroids as well as Clemens' DNA. The defense pointed out in its opening statement -- which is not considered evidence -- that the medical waste also included McNamee's DNA, and accused McNamee of manipulating the evidence.
Hardin started his cross-examination of Novitzky by establishing a timeline of events that led the federal agent to learn about McNamee via Kirk Radomski, a former Mets clubhouse attendant who pleaded guilty to distribution of steroids, HGH and other drugs in 2007. Radomski was charged and reached a plea bargain for his cooperation with authorities, but Novitzky testified that McNamee was not a target of his investigation but rather was sought as a cooperating witness. McNamee has not been charged with a crime.
Despite Hardin's attempts to get him to say otherwise as the attorney and witness often sparred over semantics of the questions, Novitzky said Clemens was not a target, either. Saying that Novitzky had referred to McNamee on many occasions as the personal trainer to Clemens and Andy Petttitte, Hardin tried to take that a step further.
"Would it be a fair statement that you considered that evidence against Roger Clemens?" Hardin asked. "No," Novitzky responded, saying that he only saw McNamee's job as connecting him to Clemens.
Hardin also asked Novitzky at length about mailing labels introduced into evidence by the government that Radomski said he found in the summer of 2008 -- more than two years after a search warrant drafted by Novitzky was executed by federal law enforcement agents, including Novitzky. Among the mailing labels, which Radomski said he found under a television set, was one addressed to McNamee at Clemens' home address in Houston. Hardin listed items such as car repair statements, bank statements and phone bills that were seized in the Dec. 14, 2005, search, along with other types of mailing labels.
"Somehow you did not find this one [mailing label addressed to McNamee at Clemens' house] that Mr. Radomski produced?" Hardin asked. "Correct," Novitzky answered.
Durham was conducting his redirect examination of Novitzky when court recessed for the week. It will reconvene Monday morning with the final questions to Novitzky, which Durham said will be followed by direct testimony from FBI agent John Longmire, the lead agent who has gathered much of the evidence against Clemens for this trial.