The defense rests

  • Ryan McGee [ARCHIVE]
  • ESPN The Magazine | December 4, 2012

Rusty Hardin AP Photo/Manuel Balce Ceneta"Roger was the kind of guy you loved if he was on your team," Hardin says.

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On June 18, Roger Clemens was acquitted on two counts of perjury, three counts of making false statements and one count of obstructing Congress, capping a trial that lasted more than two months. The charges stemmed from his testimony at a congressional hearing in February 2008 in which he denied using performance-enhancing drugs. But even though Clemens was exonerated, his attorney, Rusty Hardin, concedes that many fans still consider the pitcher's reputation tainted.


RYAN McGEE: Did Roger Clemens believe he could change everybody's mind about whether he used PEDs?
RUSTY HARDIN: No. He never had any illusion about that. He knew, even after the ruling of not guilty, that people would say, "Aw, that was just a trial and it was lawyer magic." If you polled Americans, I think 90 percent would have said Roger did it, and the other 10 percent would say they didn't care. What's still interesting to me is that people were never willing to consider an alternative theory as to why he kept denying the charges so vehemently. All the criticism of Roger was based on the assumption that he was just in denial, like all these other players who had first been accused [of using PEDs] denied it, but then we found out they did use them.

McGEE: So you think the public, and the media, dug in on Clemens because of the other athletes we learned had used PEDs?
HARDIN: The fans think they know an athlete based purely on his on-field persona. Roger is the kind of guy you loved if he was on your team but hated if he was on the other team. Anyone who knows Roger knows he's two different people. It's just easier to hear those denials and plug it into the aggressive Roger we saw on the mound, not the guy who is great with kids and is trading autographed baseballs for lattes with the college students working at Starbucks.

McGEE: We all know how much Clemens' life changed on Dec. 13, 2007, when the Mitchell report was released. How much did yours change?
HARDIN: During the trial, Geraldo Rivera went after me. He coined the "worst lawyer" phrase and called for me to be disbarred. I'd represented a number of athletes over the years -- Rudy Tomjanovich, Scottie Pippen, Wade Boggs, Warren Moon. Some of those cases were civil, some criminal, but none of them had been captured on a daily basis by the sports media. I wasn't prepared for the entertainment aspect of the sports media. In the beginning I handled it abominably, quite frankly.

McGEE: How so?
HARDIN: We could never get out in front of the story. I was used to cases where we were able to, at the very beginning, put out our side of the case and kind of move everyone back to the middle until there was a trial or some sort of resolution. That was totally impossible in Roger's case. No matter what we tried to do, it was perceived as Roger being arrogant. People saw this as just a continuation of his on-field personality. They weren't willing to entertain the notion that he was so adamant about [not using PEDs] because he was not guilty. They just assumed he was guilty but was being arrogant and refusing to admit it.

McGEE: So when you're faced with this public assumption of guilt, what do you do?
HARDIN: We shut it down after the congressional hearings for three years and said hardly anything in public until we could get the case into the courtroom. I always felt the only chance we had to combat that assumption of guilt was in a trial context. Then we'd have the opportunity, for the first and only time, to challenge the accusations through cross-examination and presentation of our evidence. We had to get it into a place with some rules, where there was actual evidence and material for people to sort through.

McGEE: When you finally got to trial, was there the sense of relief that you were hoping for?
HARDIN: Yes. Here's the interesting thing about public perception: None of it would stand up to a challenge in a court of law. But you can't show that until you get there. The very first piece of evidence that the jury asked to see was the audio tape of Roger's deposition that was given before the [2008] hearings. People in the public acted like they were surprised that Andy Pettitte said what he said. [Under cross-examination during the trial, Pettitte acknowledged that he might have misunderstood Clemens when Pettitte said he heard his former teammate say he used human growth hormone.] But Andy had said it under oath before. In 1999 or 2000, when they were working out, Andy thought he'd heard Roger said he'd tried HGH. But then in 2005 -- the now-infamous hearings when Sammy Sosa forgot how to speak English and Mark McGwire didn't want to talk about the past -- Andy said he got concerned if the media came to him because he'd used HGH in 2003 and 2004, though, as Andy said in his testimony [in May], Roger had no idea he'd used it. He'd never told Roger that. So he goes to Roger before the trial and says, "What are you going to do if they ask you about this?" Roger says, "I'm going to tell the truth. I never used any of that s---." Andy says, "I thought you told me a few years ago you'd used HGH?" And Roger says, "No, I told you that Debbie had tried it!" So Andy testified in his deposition that Roger had been so adamant that Andy had probably misunderstood him the first time. The truth was, Andy was never sure. Andy never had been sure whether he'd heard Roger right after he heard Roger deny it several years later.

Rusty Hardin
Mark Wilson/Getty ImagesRusty Hardin has represented a number of athletes during his years in practice.

The jurors told us later that the reason they asked for Roger's full testimony or deposition was that the snippets they'd heard during the trial did not sound like a man who was trying to lie or mislead. They wanted to hear the whole thing. There was no video, just audio. So they played it, and they all agreed. They said, "He's not trying to mislead, he's trying to explain. That's why he talked for five pages trying to answer one question." If you've ever interviewed Roger, then you know he never answers the question you ask him. He answers the question he thought you meant to ask and then will help tell you some more about what you asked. Which is fine and helpful for a writer, or even a jury member, but it's not very good practice for a witness. That's how it was before Congress. So during that whole four years, we realized the only chance we had was to challenge the evidence in court, not in public.

McGEE: Are you saying that in the end, the best thing that can happen to an athlete -- or any public figure in this situation -- is to go to court?
HARDIN: Privately, we'd say to ourselves, "The only chance Roger has to convince at least some of the public that he didn't do this is to get indicted and have a trial." That's a hell of a way to prove your innocence -- get charged with a crime. But to cut through the chaos, you have to get into a place where there are rules and evidence.

McGEE: Did Roger understand that? It seems there would have to be a path of least resistance here somewhere.
HARDIN: Let me take you back to the night before the Mitchell report came out. Roger is sitting here in my office. We're about to talk to my investigators, who went to New York to talk to [former Clemens trainer and primary witness] Brian McNamee. McNamee has told them what he told the Mitchell report people and now they're telling us what he said. When they get to the part that says Andy Pettitte took HGH, Roger just came out of his chair. He was so dumbstruck that Andy would have done that and not told him. We had to say, "Roger, he admits he did do it." I said to Roger, "If this comes out tomorrow morning and you're named, you are going to be the face of this thing. Everybody is going to assume you did it. If you come out and publicly deny it, through me or yourself, you are going to be offered an opportunity to go to Washington and testify before Congress. If you say no, you'll be subpoenaed -- like they did with the other guys." I told Roger that if he testified under oath, he would be referred to the Department of Justice for perjury because [Congressman Henry] Waxman would never let it stand. Then he'd be indicted because the prosecutor wouldn't have the nerve not to [indict him] because, by that time, his name would be mud. Then I told him that if he was convicted he would get 22, 24, maybe 30 months in prison. This was in December 2007. He never hesitated.

McGEE: So essentially, per your explanation to him, Clemens would be charged and tried for denying that he committed a crime?
HARDIN: That's exactly what I told the jury. That's all he did. He said, "I didn't do that." You're not charged with what you're having to deny. You're then charged with perjury for lying to them about it. What a member of the jury said to me [after the trial] was that Roger Clemens was basically charged and attempted to be convicted for refusing to take the Fifth Amendment. That's really what happened.

McGEE: And if he had taken the Fifth?
HARDIN: If he had, none of this would have happened. He had another option that we reminded him of all the time. We said, "Listen, if you did this, then do what Andy did. It's the right thing to do. Step out, admit it and put it behind you." But Roger never wavered. As a result, we all became convinced he really hadn't done it, even as the public never bought in.

McGEE: How hard was the stay-silent plan that you implemented after getting off to such a disastrous start publicly for Roger?
HARDIN: It was brutal for him. For all of us. But if I had been out there on TV running my mouth the whole three years, it would have been, "Well, here's this dumb yokel from Houston, Texas, who doesn't know his ass from a hole in the ground speaking for his client who doesn't have the balls to talk for himself." And that's how it was reported in the early stages.

McGEE: When you're dealing with someone as well-known as Clemens, how much of your job is managing public perception?
HARDIN: A private person doesn't have a public reputation to defend. But a high-profile athlete has to make a decision: Does he worry about how he is perceived, or does he worry about his legal position? I told Roger, "You're going to have two choices. You can take the Fifth and have no legal exposure in this matter. This will be behind you." He said, "But everybody will assume I did it!" Yes, I said, they will. He said, "I can't just answer whatever to save my ass and let everybody think I did it." Roger has four sons whom he's devoted to. He said, "If I was single, I'd just tell [the media] to stick it where the sun don't shine. But I can't let my boys believe I was cheating."

McGEE: And you say that's not the act of a stubborn man but of a man who knows he's right?
HARDIN: Exactly. But the perception was always going to be that it was the act of an arrogant man. Baseball fans are unlike fans in any other sport. If they think you have messed with the integrity of their game, then you're the Antichrist. I never got the kind of hate mail that I received when we represented Roger.

McGEE: Not even when you represented the heir to Texas oil tycoon J. Howard Marshall II against Anna Nicole Smith [a case in which the former Playboy centerfold claimed she was due half the $550 million estate of her 90-year-old husband of 14 months]?
HARDIN: Not even close. It was all so mean, just vehement. All over whether or not Roger put something into his body he wasn't supposed to. Having said that, you could really see the tide turn when people started hearing evidence. If you go back and look at the media coverage of this, it started changing as soon as real evidence started being presented. They started questioning what the government was doing. Up until then, it was all aimed at Roger. It had to get into the courtroom.

McGEE: Speaking of perception, how did you feel about how you were perceived during all of this, the "worst lawyer in America" stuff you referred to earlier?
HARDIN: I never tried to talk Roger out of testifying before Congress. Some people suggested that I be disbarred for letting him do it. The lawyer's job is to advise the client of the consequences of whatever he does or doesn't do. It's not to make decisions for him. Here's the problem: Let's say his lawyers pounded on him to take the Fifth. He'd be immensely unhappy for the rest of his life. He was willing to run the risk of doing time in the federal penitentiary because he was not willing to exercise the right that would have saved him.

McGEE: So what's the lesson learned from the Clemens trial?
HARDIN: Don't rush to judgment. Few people took a broader look at whether the allegations made sense. They were all coming from one person. Did Clemens' body change? No. Did his throwing motion change? No. Did his numbers suddenly spike like we saw with other guys who we know used? No. The government spent millions of dollars to try to find something that connected Roger to steroids outside of [former strength coach] Brian McNamee's allegations. But they couldn't. No one else did their own independent study outside of our research for the case.

Lesson one is this: Just because a lot of people are guilty, that doesn't mean that all the people are guilty. And once you start assuming that an allegation is true just because other people have done it, there is the potential for tremendous harm to the innocent. The second lesson I hope people gained [from this case] is that, sooner or later, we have to give credence to juries that hear evidence, as to whether or not that's a fair resolution of the issue. The night of the not-guilty verdict, we're trying to celebrate. But the questions weren't about Roger's innocence. It was, Do you think Roger Clemens will get into the Hall of Fame? I can tell you this: Roger doesn't dwell on that. I do. But I think he knows that this probably cost him that.

McGEE: I look at the timetable of the Clemens case, and the change in media practices since then strikes me. When the Mitchell report was released in 2007, Twitter was just getting going. During the Anna Nicole Smith trial in 2001, the Internet was just getting going.
HARDIN: I don't know how anybody with a public reputation gets out in front of the allegations anymore. I really don't. I represent Adrian Peterson right now. He's arrested about 2:30 on a Saturday morning, and they keep him there for about an hour before they decide whether or not to take him downtown and charge him. At 5:30 in the morning, TMZ already has an interview with the club manager, who gives his self-serving version of what happened. It's all over the media because [Peterson] can't speak up and doesn't have anyone who can speak for him yet. By the time he does, on Sunday or Monday, it's too late.

McGEE: You heard what people said about you, the stuff about the Southern country lawyer who comes in on big cases and "ma'ams" and "y'alls" his way to wins. Does that bother you?
HARDIN: No. But I do think that with certain groups that image and my accent definitely accentuated the initial reaction to me. And I lost clients because of my attachment to Roger's case. There is no question that the accent carries with it some preconceived notions about the intelligence of the person using it. The adjective they used to describe me was "folksy." To me, that means friendly. To them, I think it means something else.

McGEE: How is your relationship with Geraldo Rivera now?
HARDIN: My relationship with everyone in the media is great. I had a lot of baseball writers who had never covered a trial before come up to me and say, "Man, I wish they would stop objecting to everything. This is entertaining stuff!" My relationship with Geraldo is fine. He wanted an interview the day Roger's trial ended. I called back and said, "Tell Geraldo that the World's Worst Lawyer respectfully declines."

Ryan McGee interviewed Hardin on Nov. 8, 2012. Follow The Mag on Twitter (@ESPNmag) and like us on Facebook.

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