"There is no prospect of us getting to McNamee [on Tuesday] ... We may or may not reach him by Thursday," Durham told Judge Reggie Walton once the jury was sent home for the day.
Testimony from Federal Bureau of Investigation case agent John Longmire will continue Tuesday, and the government still has other witnesses to call before McNamee testifies. With a juror needing to attend previously scheduled doctor's appointments Wednesday, that day will be abbreviated to less than five hours, leaving Thursday in doubt as the arrival on the stand of the government's key witness.
At the outset of Monday's proceedings, Walton ruled that the government could not use an excerpt from a "60 Minutes" interview in which Clemens said his attorneys advised him against speaking to investigators of the Mitchell Report.
Prosecutors had hoped to juxtapose that statement with Clemens' testimony before Congress in which he said he had no idea Sen. George Mitchell, the author of the report, wanted to talk to him. But Walton said the statement on "60 Minutes" was protected by attorney-client privilege, so that excerpt was inadmissible. That ruling makes it more difficult for the government to prove one of 15 obstructive acts, although the government needs just one of those acts to attain a conviction on the single count of obstruction of Congress against Clemens.
Also before jurors entered the courtroom Monday morning, the defense submitted its official motion to strike a key part of Yankees pitcher Andy Pettitte's testimony. During cross-examination by the defense last week, Pettitte agreed that he was 50-50 on whether he heard Clemens correctly in a conversation during a workout prior to the 2000 season, when Pettitte thought Clemens admitted to using human-growth hormone.
"The Court should not allow the jury to consider an alleged 'admission' that has all the weight of a coin flip," the defense motion read.
The government had yet to submit its written argument on the Pettitte testimony by the end of Monday's proceedings.
Before McNamee takes the stand, the two legal sides still have issues to address with Walton, including the depth to which McNamee's "prior bad acts" will be allowed into the trial and whether documents from McNamee's divorce proceedings will be admissible via a subpoena issued by Clemens' attorneys -- a subpoena the defense team said Monday is being narrowed in scope.
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 that he saved physical evidence he says proves it.
That physical evidence -- vials, ampules, needles, syringes and medical waste McNamee stored in a beer can for nearly seven years -- was shown to the jury a second time Monday, this time via cataloging done by Longmire as to what items were sent to what laboratories for testing. The government also introduced as evidence DNA samples -- stipulated as fact by both sides -- from Clemens, McNamee and three of McNamee's attorneys who handled the evidence prior to the government taking possession of it.
When McNamee does take the stand, the jury already will have seen decidedly different pictures of the physical evidence -- literally. The government has shown many neatly organized photos of the items, including close-up shots of needles and the cotton balls, one of which has three spots appearing to be blood on it. The defense, during its cross-examination of Longmire, showed a grainy photo -- actually taken by McNamee's attorney -- of the crumpled beer can and the tissues and gauze around it that looks much different than what the government has shown. The photo in the defense exhibit was taken before the beer can was opened and items were removed and documented by federal agent Jeff Novitzky.
At one point, defense attorney Michael Attanasio asked Longmire if he would use a beer can to store evidence. "I would not. ... That's not what [the FBI] trained us to do," said Longmire, who has been with the FBI for six years.
Later, during re-direct examination, Durham asked Longmire hypothetically if he would use evidence he found on the street if need be. "Would you collect it or leave it on the street?" Durham asked.
"If it had anything on there that could be relevant, we would want to test it," Longmire said.
The testing of the evidence McNamee turned over to the government in January 2008 -- about a month before the House committee hearing -- was detailed in Longmire's testimony in terms of what items were sent to the Forensic Science Associates lab (for DNA or fingerprints testing), the Anti-Doping Research lab (for drug testing) or the FBI lab (which has units for all three types of testing). Some items were sent to more than one of those labs.
Longmire did not testify to the actual results of the tests. That will be done, presumably, by scientists from the labs.
Among the other items introduced into evidence during Longmire's testimony included Clemens' career statistics, photos of him with admitted steroids user Jose Canseco on the three teams they played together, numerous photos Longmire took of Clemens' apartment building and the actual unit where he lived in New York city while with the Yankees, photos of McNamee's residence in the Breezy Point section of the New York City borough of Queens, and a photo from the 2003 Sports Illustrated swimsuit issue depicting Debbie Clemens wearing a bikini with a bat over her shoulders while standing over her husband Roger, reclining on the Central Park grass, with the New York skyline in the background. It was in preparation for that shoot that Debbie Clemens allegedly received HGH from McNamee.