Veteran defense lawyer Rusty Hardin was first up yesterday afternoon to address reporters outside Washington's federal trial court after the Roger Clemens verdict. But he quickly offered his thanks to his trial teammate: Cooley partner Michael Attanasio.
Attanasio runs Cooley's San Diego office and is vice-chair of the firmwide litigation department. A day after a jury acquitted Clemens on charges of lying to Congress, Attanasio answered a few questions about key moments in the trial, including testimony from Andy Pettitte and Brian McNamee, who said he injected Clemens with steroids and human growth hormone. The verdict came after about 11 hours of deliberation.
The National Law Journal: You met with jurors after the verdict. Any insight on what stuck with the panel?
Attanasio: I'll speak to it globally since the jurors so far haven't spoken out. But what we understood to be the consensus: They did not believe Brian McNamee. They didn't find the case to be close. They felt there was no corroboration, that McNamee couldn’t be trusted, and that we put on a compelling case about what made Roger Clemens Roger Clemens.
NLJ: Andy Pettitte told you that his memory of a key conversation in 1999 or 2000 with Clemens about growth hormone was, at best, "50-50." Were you surprised when he said that?
Attanasio: Well, I wasn't surprised in the sense that the actual phrase '50-50' was in my question. I certainly hoped he would agree with it. Many people have privately asked me about this. If one goes back and reads Andy's congressional deposition and his grand jury testimony very closely, you can see that he is uncertain about his recollection of the conversation. You can see the opportunity for that type of question. I'd never spoken to Andy Pettitte before he testified. I never vetted that question with him or with his lawyers. I just asked it. I thought there was a reasonably good chance 50-50 would sound right to him. I was happy about the answer.
NLJ: You and Rusty lingered on the government resources spent in the case, showing jurors a map depicting the scope of the investigation. Whose idea was it to use this map?
Attanasio: These days as trial lawyers, all we hear constantly is it's a visual medium and you need graphics. That's all that is drilled into our head now. That demonstrative [exhibit] was if not the best, then one of the top three demonstratives I've ever seen. And it was Rusty's idea.
NLJ: The Justice Department wasn't too fond of it. Attanasio: Not at all.
NLJ: Was there any moment at trial you wish you could turn back the clock to do over involving strategy or a key question?
Attanasio: There are always small things, a question here, a question there. I've never been in a long trial where we had as many good days as we had. The team would leave the courtroom and we'd look at each other and say, wow, another great day for Roger. More good testimony. More evidence of his innocence. Day in and day out. Frankly, beginning with Andy Pettitte. That was sort of one of the early moments where we left feeling very positive about the evidence. That just continued.
NLJ: Do you see the Clemens verdict have any larger affect on congressional investigations or referrals to DOJ?
Attanasio: I think our team would hope Congress keeps its focus on legislation and solving problems in this country, not on having individual 'show trials.' There were several representatives at the time who publicly stated on the record, 'This is not our business and we should not be involved in this type of swearing contest between two private citizens over what another person said in a private report, which of course was George Mitchell."
NLJ: You made a big deal about forcing the testimony of Rep. Darrell Issa (R-Calif.), chairman of the House oversight committee. Should members of Congress testify at criminal trials after a referral — to the extent the member is not restricted from offering testimony?
Attanasio: I'll leave that to them and the voters who have to choose their representatives. That's above my pay grade. But, having said that, it's a pretty sorry day when they conduct a hearing like that, make a referral, and then nobody bothers to show up who's been elected.
NLJ: Any big take-home points, lessons learned from the trial?
Attanasio: This trial, more than any other, just reaffirmed my faith in the jury system, in the wisdom of jurors who don't know anything about the case coming in but pay careful attention to both sides, and to the judge, and then apply justice. This verdict, and the way jurors conducted themselves, really makes you proud to be a part of this system.
NLJ: How much did the defense cost and can you recoup legal fees?
Attanasio: Short answer is no. Unfortunately that's not a part of the system in this type of case. Mr. Clemens, to prove his innocence, had to invest substantial personal resources. He was a very successful ballplayer, but he's not a corporation with revenue. But he was going to fight to the end and he was willing to do that. As Rusty said in closing, God help us for the people who get accused of something they didn't do and don't have those kinds of resources. Thankfully for him, he did. He invested a good deal of them, and justice was done.
NLJ: See any Nationals games during your time in D.C.?
Attanasio: A group of us, the Houston contingent and I, went to the park and saw them play the Astros one night. Lot of fun. That's a good looking team.
NLJ: Get any rest last night?
Attanasio: We celebrated deep into the night, as you would expect. Roger was with us for some of it, but spent most of the time with his family. We're very happy for him and his family, who have been through a lot.
NLJ: Where did the team hang out?
Attanasio: There's a bar on Seventh Street called the Rocket that was one of our favorites. We were known to be in there from time to time.
Photo by Diego M. Radzinschi of The National Law Journal