Having already admonished attorneys for the way they've been going about their business with each other, Judge Reggie Walton was hearing and ruling on objections from the government about McNamee's impending testimony when defense attorney Rusty Hardin expressed frustration over the procedures taking place relating to the witness.
Walton said he didn't know how things are done in Texas, where Hardin and Clemens reside, and Hardin responded that they're done there like anywhere, doing so in a manner that triggered an angry response from Walton.
"Just like you can get mad, I can get mad, too. Don't look at me like you're going to intimidate me, sir!" Walton exclaimed.
"These people [government lawyers] have objected more than in any trial I've been involved with," Hardin responded.
Walton later apologized to Hardin and Hardin returned the apology, both in much calmer tones.
Clemens, who won a record seven Cy Young awards in a 24-year Major League career, is charged with three counts of making false statements, two counts of perjury and one count of obstruction for telling a Congressional committee that he never used steroids or human-growth hormone.
Brian McNamee, Clemens' strength and conditioning trainer for the better part of a decade, testified before Congress and at this trial that he injected Clemens with performance-enhancing drugs numerous times, saving evidence in a Miller Lite beer can and a FedEx box after injecting Clemens in August 2001. Clemens testified all McNamee injected him with was vitamin B12 and lidocaine.
Earlier in the day, defense expert Marc Scott Taylor testified that DNA on a needle, which earlier was identified by the government's expert to likely belong to Clemens, could have been manipulated or could have been mixed with other DNA, particularly that of Brian McNamee because some of the markers were similar.
Keel had testified the needle had DNA consistent with Clemens to a degree of certainly relating to one out of 449 U.S. Caucasians having that profile. Taylor pointed out that several of the markers also are found in McNamee's DNA, so the six to 12 cells Keel said were tested on that needle actually might have been from multiple sources or could have been caused by manipulation of the evidence.
In cross-examination, Assistant U.S. Attorney Courtney Saleski immediately pointed out that Taylor did not test any of the items himself even though he had the opportunity to do so, and that he issued no report on the matter, just a statement that he did not sign. She also went back over the documents relating to the markers on a chart, pointing out that while several are similar several could not possibly be from McNamee.
She also asked Taylor whether it's really hard to fool an expert, suggesting that it would have been difficult to manufacture the evidence and have an expert like Keel say with certainty it was not manipulated, to which Taylor said that's not always the case.
"Maybe you're a different kind of expert," Saleski said.
When Eileen McNamee first took the witness stand outside of the jury's presence, she invoked her Fifth Amendment privilege, responding to Hardin's questions about online prescription drugs, handling evidence and hydrocodone by saying to each, "On the advice of my lawyer, I respectfully decline to answer on the grounds that the answer might incriminate me."
With that, the prosecution presented Walton with an order of immunity for all crimes except perjury, which Walton -- after the witness' attorney checked it -- signed to set in motion her appearance before the jury.
Now a first-grade teacher still living in the Breezy Point section of the New York City borough of Queens, Eileen McNamee said that her marital problems did not have anything to do with her husband's job, that she never questioned him about the time constraints or talked to him about drug use by Clemens or other athletes, and that she never said "You're going down" for others' actions -- all of which Brian McNamee said during the trial.
"I probably complained once or twice, but I didn't fuss about it," she said.
Saying she hadn't heard of her husband's account of keeping the items at her insistence until his testimony in this trial, she said when she asked him what was in the box upon first finding it, he did not tell her.
"He was saving things for his protection and it was none of my concern," she said.
McNamee testified that she never saw any of what was inside the FedEx box until around 2003 or 2004, after it had been moved to the master bedroom closet. She said she had moved out of the bedroom in late 2001 after the incident in Florida in which he was investigated but never charged with sexual assault, although the specifics of the incident have not been mentioned to the jury.
She said that, when cleaning the closet, she removed from an unsealed FedEx box a bag of what she said appeared to be syringes, small vials and papers. She did not recall seeing a beer can or anything else inside the box but did see a beer can that had used syringes in it next to the box -- a Bud Light can, not a Miller Lite can.
On other elements of her husband's sequence of events, McNamee did not have a different account, including the timing of when he retrieved the FedEx box of evidence to turn over to government investigators via his lawyer. She said she was sleeping in the master bedroom with her daughter (he had moved out of the house when the Mitchell Report was released in December 2007) when he entered the house around 3 a.m. and she nearly hit him with a baseball bat thinking he was a burglar. Brian McNamee testified he retrieved the evidence early the next day after Clemens aired during a press conference a taped conversation between the two men that referenced his son's medical condition.
Prior to McNamee's appearance and before Walton's exchange with Hardin, the atmosphere of the proceedings continued to be more contentious than the judge would like.
Walton, who on Tuesday said he was troubled by both sides not being as "candid as the law envisions," made it clear again to the attorneys he wasn't happy with how they're conducting themselves. He did so after the defense entered a territory with Taylor that had not been part of the pre-testimony communications between the two sides.
When Saleski raised an objection, Walton told defense attorney Michael Attanasio that the information "should have been provided" and then raised his voice, saying he blames both sides for the atmosphere that has pervaded the trial, a proceeding in its eighth week that has been rife with lengthy bench conferences and extensive arguments between the two legal sides over witnesses and evidence.
"You all have been playing fast and loose, and I'm sick and tired of it," Walton said.
Saying it caused him to consider striking the witness' testimony but it wouldn't have been fair, Walton said before calling for a break, "Sometimes you roll the dice and you lose."
Taylor was the first witness on the stand Wednesday, and McNamee became the 15th called by the defense during their case. Hardin has said he anticipates resting the defense case by Friday, although it's apparent the government will need some time for a rebuttal case before the trial is sent to the jury.
Other witnesses the defense intends to call include Rice University coach Wayne Graham, who coached Clemens in junior college; Bret Ingerman and Ellen Ginsberg of DLA Piper, the law firm in charge of the Mitchell Report; Dr. Terrence Boos, a Drug Enforcement Agency chemist who was a witness for the prosecution; and Debbie Clemens, the defendant's wife.