WASHINGTON -- Defense attorney Rusty Hardin began his first extended session of cross-examination of key prosecution witness Brian McNamee in the federal perjury trial of Roger Clemens by saying he would be setting up a chart with which he would list some of McNamee's recollections as either a mistake, a case of bad memory or a lie. By the time court had recessed Wednesday at noon ET because of a juror's commitment, Hardin referenced the chart sparingly, but had gone through numerous questions about what McNamee remembers and doesn't remember before and after McNamee claims Clemens asked him in the Toronto Blue Jays' clubhouse around June 1, 1998, to help him with a "booty shot" -- a term that now has been used dozens of times in the trial. Through testimony that at times was testy and frustrating for both sides, Hardin questioned the witness about statements McNamee made before Congress and in his direct testimony earlier in the week, attempting to poke holes in McNamee's credibility.
"Mr. McNamee, do you sometimes just make things up?" Hardin eventually asked the chief accuser of his client. "I'm not making anything up," McNamee responded. Hardin also tried to suggest that McNamee has been trying to capitalize on the situation, particularly since he and Clemens appeared before Congress in 2008. "Ever since Feb. 13, 2008, would you agree with me that you've been trying to take advantage of the fame you achieved with Roger Clemens?" asked Hardin, with McNamee responding that he has not. Clemens is charged with three counts of making false statements, two counts of perjury and one count of obstruction of Congress related to his testimony during a Feb. 13, 2008, hearing before the House Committee on Oversight and Government Reform and a Feb. 5, 2008, deposition conducted by committee staff members. Clemens said at the hearing, "Let me be clear: I have never used steroids or HGH." McNamee said at that same hearing that he had injected Clemens with performance-enhancing drugs on numerous occasions. He'd also saved vials and ampules containing steroids and HGH, used and unused needles and syringes and three cotton balls, one appearing to be stained with three blood spots -- all kept in a 16-ounce beer can inside a FedEx box at his house in New York for almost seven years. Before Hardin had the opportunity to confront his client's chief accuser at length for the first time before the jury, attorneys for both sides argued strenuously before Judge Reggie Walton over contents of an e-mail that McNamee discussed during direct testimony on Tuesday. The crux of the e-mail was that, following a 2006 Los Angeles Times article that, as it turned out, erroneously linked Clemens to use of performance-enhancing drugs, Clemens said he would get his "people" to take care of anyone who might inform on him, and McNamee responded that he wouldn't do that and that he would "hop on a plane and come down and slap you real hard" if that's what Clemens was suggesting he was doing. But it was another part of the e-mail thread that set off the defense, because it included another reference to Andy Pettitte that was not redacted. Defense attorney Michael Attanasio on Tuesday had raised several instances in which McNamee mentioned Pettitte, which Judge Walton had ruled would be out of bounds, because a connection that might suggest that McNamee gave Pettitte performance-enhancing drugs could lead to guilt by association. Attanasio was frustrated by finding yet another reference to Pettitte in the e-mail put into evidence by the government, especially after the government "supposedly" had instructed McNamee to cease the references per Walton's order and that McNamee continued to "repeatedly, intentionally inject" Pettitte's name into his testimony. "Mr. Hardin will come tackle me if I ask for a mistrial, so I will not," Attanasio said. The first attempt to try Clemens ended in a mistrial caused by prosecutors showing inadmissible evidence to the jury. After Assistant U.S. Attorney Steven Durham pleaded that the references were not intentional and that Attanasio was calling the government's motives into question, Walton lamented that attorneys were now calling their opponents unethical in open court. "That's where our political world is and now that is coming into the court," said Walton, who was a defense attorney before being appointed a judge. "That's one reason I got out of it early." Said Attanasio, who apologized to the court if he was too harsh: "It's frustrating for this client, who's standing trial and could go to prison." Also, McNamee attorney Richard Emery approached the judge to complain that issues Hardin raised were out of bounds, saying the photo of McNamee wearing a tie with an advertising logo on it was not in evidence (although it was) and that the tie was not auctioned off, as Hardin had said to McNamee, with McNamee denying it was. Hardin said he had a good-faith basis to believe that the tie, another version of which McNamee admitted he autographed, had been put up for auction, and that he'd have proof of that for the judge. "At the end of the day, he'll be batting 0-for-2 for accuracy. ... At the close of business today, Mr. Emery can come back and apologize," Hardin said. In his direct testimony Monday and Tuesday, McNamee detailed how he injected Clemens with steroids and HGH at the pitcher's Manhattan apartment when both were with the Yankees in 2000 and 2001, much as he did when they were both with Toronto in 1998. He also explained how he came to gather the medical waste and other items, keeping the materials at the urging of his wife. McNamee turned over those materials, which he kept to himself through several interviews with federal agents and Mitchell Report investigators, to the government in January 2008. McNamee also told his account of injecting Debbie Clemens, Roger's wife, with HGH in the couple's master bathroom with Clemens standing right there. McNamee said the experience was "creepy." Clemens testified before Congress that he was not present for that or aware of it occurring until afterward. While building up to McNamee's recollections of those events, Hardin established that McNamee could name only two other occasions after 2001 in which he claims to have discussed PEDs with Clemens: once when McNamee says Clemens asked if he "still knew a guy who could get" steroids because Clemens wanted to do more intense bodybuilding after his career ended, and the other time when they discussed Debbie Clemens' HGH injection. In part to explain why Clemens kept using McNamee's services after 2001 but also to raise a recurring theme about Clemens' natural talents and achievements without McNamee's assistance, Hardin also set to establish that McNamee provided more than just strength and conditioning roles. Hardin said McNamee also could catch pitchers and throw batting practice and stretch them, making him valuable as someone who could help players with their fitness regimens. "And that has nothing to do with steroids or HGH?" Hardin asked. Said McNamee: "I'll agree with that."
John Schlegel is a national reporter for MLB.com. This story was not subject to the approval of Major League Baseball or its clubs.