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Attorneys score partial win for Clemens at pre-trial hearing

By Paul Courson, CNN
STORY HIGHLIGHTS
  • NEW: Roger Clemens may get to see law firm's documents on steroid use
  • NEW: Judge is persuaded to review whether the notes could help defense
  • NEW: Notes could establish deceptions by former trainer, defense attorney says
  • Clemens is accused of lying to Congress during baseball steroid investigation

Washington (CNN) -- Baseball legend Roger Clemens may get a chance to see internal documents compiled by a law firm handling a report on the illicit use of steroids that named him among possible players involved.

Attorneys for Clemens convinced a federal judge at a hearing Thursday that he should review whether there is information that could help defend their client against a six-count indictment accusing him of lying to Congress.

U.S. District judge Reggie Walton told lawyers for DLA Piper that they must produce 20 documents by next Friday that would respond to the subpoena. Walton said he would review the materials behind closed doors, but would not rule whether they can be provided to the defense or admitted at trial until reaching that point in trial testimony.

But at the same hearing, Walton rejected a Clemens demand for internal notes from the U.S. House Committee on Oversight and Government Reform, granting a motion from congressional lawyers to quash a subpoena similar to that targeting the law firm.

Clemens, for the first time since he was arraigned last August, did not attend the latest pre-trial hearing. Jury selection is set for July 6.

A member of the law firm, former U.S. Sen. George Mitchell, was commissioned by Major League Baseball to investigate the prevalence of performance-enhancing drugs.

The resulting Mitchell Report, released in late 2007, relied on a former personal trainer to Clemens, Brian McNamee, in its findings that implicated Clemens and other players.

The House panel, in turn, used much of the Mitchell Report to question Clemens and McNamee at a hearing in early 2008.

After a Clemens denial he had used steroids, lawmakers asked the Justice Department to investigate the discrepancies.

Last August, Clemens was charged with one count of obstruction of justice, three counts of making false statements and two counts of perjury.

Defense attorney Rusty Hardin at Thursday's hearing said what McNamee told Mitchell during his probe was the same as what he had told prosecutors, as part of what Hardin says was a deal to avoid charges himself. But, Hardin said, "McNamee is conning everybody from the beginning," and that the law firm's notes could establish an "evolutionary tale" of deception that "gets bigger and bigger as it goes along."

But Judge Walton, respectful of a doctrine that protects lawyers from having to disclose their notes and opinions developed as part of representing a client, said his closed-door review would separate any protected notes from what may be near-verbatim accounts of what McNamee has said.

This would have been the first courtroom appearance for Clemens since the conviction April 13 of all-time home run leader Barry Bonds, who also was swept up in the steroids controversy. In voting to convict Bonds on a single count of obstruction of justice, the jury found Bonds to be "evasive" in his testimony to a federal grand jury investigating illegal steroids use by pro athletes.

Neither case has involved criminal charges for steroid use itself, only for alleged deception when questioned under oath.

The two cases have similarities, but testimony in the Bonds trial did not include that of his personal trainer, who refused to come to the stand.

In the Capitol Hill appearance in 2008, McNamee, seated within arm's length of Clemens, testified that he kept soiled medical dressings, containers, hypodermic needles, and other materials that he alleges could help establish that Clemens had been exposed to illicit performance-enhancing drugs.

The Barry Bonds trial was held in a San Francisco federal courthouse less than two miles from the ballpark where Bonds broke Hank Aaron's major league home run record in August 2007. The Clemens courthouse is within sight of the U.S. Capitol, where he allegedly lied to Congress. He is a seven-time winner of baseball's coveted Cy Young Award, and the ninth-winningest pitcher in the sport's history.