April 21, 2011 -- Roger Clemens' defense attorneys today laid out a key part of their defense strategy for July's upcoming trial, revealing that they intended to show that Clemens' former trainer, Brian McNamee, has continually lied about Clemens' alleged steroid use.
"There's congenital liar syndrome," said Rusty Hardin, Clemens' defense attorney, at a pre-trial hearing. "We will contend that he [McNamee] is still lying to these prosecutors even today."
Hardin motioned to the two assistant U.S. attorneys who plan to call McNamee as one of their key witnesses.
Clemens was indicted last August on charges of obstruction of Congress, perjury and false statements for testimony he gave to Congress regarding any use of performance enhancing drugs, specifically steroids and human growth hormone, or HGH. Clemens is charged with making the false statements to congressional investigators in a Feb. 5, 2008 deposition and the perjury charges involve his Feb. 13, 2008 testimony before the House Oversight and Government Reform Committee.
Hardin argued at the preliminary hearing before Judge Reggie Walton of the need to obtain documents and memos from former Sen. George Mitchell's law firm, DLA Piper, which conducted the work for the Mitchell report that reported the findings of Major League Baseball's investigation into steroid use.
The Clemens defense team subpoenaed documents from DLA Piper relating to interviews Mitchell Report investigators did with former big leaguer Jose Canseco, McNamee and Kirk Radomski, an admitted steroid dealer who pleaded guilty to money laundering and selling anabolic steroids and HGH.
Thursday's hearing focused on efforts by Mitchell's law firm to quash the subpoena, citing attorney-client privilege and attorney work product.
McNamee allegedly reached a proffer agreement with federal prosecutors, stipulating that he could not be charged with steroid distribution as long as everything he told the prosecutors was truthful. He also was asked to cooperate with the investigation led by Mitchell on behalf of Major League Baseball, which made public McNamee's claims that he injected Clemens with steroids and growth hormone in 1998, 2000 and 2001.
McNamee first met with federal prosecutors in the investigation back in June 2007 and then met with representatives from DLA Piper and Mitchell on July 9, 2007.
Hardin argued in court that he needed the internal documents from Mitchell's law firm because federal prosecutors and the federal agents involved in the Barry Bonds and BALCO investigations were present at the July 9 meeting and an additional Oct. 4, 2007 interview for the Mitchell report.
Hardin argued that none of the prosecutors or IRS and FBI agents took a single note during the two interviews.
"The only record that exists is what DLA Piper had," he said.
"None of the pens and pencil of the federal government make a note." Hardin said, "It begs credulity. ... It is disturbing. ... These documents have become critical to our defense."
Attorneys from DLA Piper argued that their work, limited to 20 documents, was attorney work product and that the files were prepared in anticipation of litigation stemming from Mitchell's investigation. They told the court that they had handed over some documents to the Clemens' defense team but the other documents were protected.
Roger Clemens Lawyer: Brian McNamee Statements 'Inconsistent'
Hardin alleged that McNamee has kept changing his story even from his first meeting with federal prosecutors and later with claims about physical evidence he had.
"If Mr. McNamee's mouth is moving, he's making an inconsistent statement." Hardin said.
Efforts to reach McNamee's attorney for comment were unsuccessful.
Walton ruled from the bench that he would review the documents that DLA Piper has in its possession and will decide if they should be turned over to Clemens defense team.
Walton denied a defense request to seek additional documents from the House Oversight and Government Reform Committee.
Counsel for the House of Representatives argued that the documents are protected under the speech and debate clause of the Constitution, which isolates the executive branch from interfering with Congress.
Walton added that the information Clemens' lawyers were seeking was obtainable in other ways.