By Ama Sarfo
Cooley LLP partner Michael Attanasio stepped up to defend former baseball star Roger Clemens in a controversial and much publicized perjury trial over Clemens' alleged steroid use, weathering a mistrial and earning Clemens' acquittal, securing a spot among Law360's White Collar MVPs.
As partner in charge of Cooley's San Diego office and vice chairman of the firm's litigation department, Attanasio carries an extremely full schedule. But he knew he had to join the Clemens defense team when Rusty Hardin of Rusty Hardin & Associates LLP, one of Clemens' defense attorneys, asked Attanasio to come onboard.
"I've known Rusty for probably 15 years — I met him when I was handling a case in Houston with the U.S. Department of Justice, and we've maintained that relationship," Attanasio said. "When the Clemens case unfolded, Rusty called me, and I was honored to work with him and honored to work with Roger Clemens."
Federal prosecutors pursued a perjury trial against Clemens based on his testimony during a February 2008 U.S. House of Representatives Oversight and Government Reform Committee hearing that he had never taken steroids or human growth hormone. Clemens had been linked to the MLB's investigation into the use of performance-enhancing drugs since May 2007, when Internal Revenue Service agent Jeff Novitzky first contacted Brian McNamee, the pitcher's trainer at the time.
??Prosecutors made their case largely based on McNamee's allegations that he had injected the pitcher with performance-enhancing drugs between 1998 and 2001. Clemens countered the claims by telling investigators McNamee had given him injections during their training, but they were vitamin B-12 and lidocaine, which he regularly received from team doctors as well.
In the face of general public sentiment that Clemens did, in fact, use performance-enhancing drugs, Attanasio said his team focused on finding intelligent jurors, preferably college educated, who would keep an open mind because of their training.
"We wanted people who had the brain power to be able to do that," Attanasio said. "There were a lot of people unwilling to give him his day in court, a lot of people who were completely unwilling to give this one person the presumption of innocence to which we're all entitled. We needed to find jurors who didn't feel this way, and we were able to do it," Attanasio added.
Clemens' defense team also made it a point to discuss a counternarrative of Clemens' career, instead of solely arguing that Clemens didn't use performance-enhancing drugs, Attanasio said. In an effort to show what made Clemens a great pitcher, the defense called about a dozen witnesses from all stages of Clemens' life, each of whom spoke glowingly about Clemens' qualities and denied that drugs or steroids factored in his success, Attanasio said.
"That gave the jury a way to understand how this pitcher could have been as great as he was, totally independent of anything the government argued," Attanasio said. "A lot of people thought we could have sat down after the government's case and argued reasonable doubt, but we really wanted to do more than that."
But when the case abruptly ended in a mistrial in July 2011 after prosecutors showed jurors inadmissible evidence, Attanasio said his team rested on the laurels of their defense strategy and changed very little.
"What we observed was that the government increased its prosecution efforts," Attanasio said, noting that the number of federal prosecutors doubled from two to four in the second perjury trial.
The government's efforts, however, proved futile when Clemens was acquitted of all charges in June.
This year, Attanasio also handled the defense of an AU Optronics Corp. executive in a criminal antitrust lawsuit that accused the Taiwanese company of conspiring to fix prices for thin-film transistor liquid crystal display glass panels in a scheme worth at least $500 million, according to the Department of Justice's indictment.
Attanasio sharpened his trial chops as a federal prosecutor for the Department of Justice's Public Integrity section from 1991 through 1999, which he joined a year after graduating Stanford Law School, and where he said he was fortunate to handle several high profile cases.
"The first big case where I found myself in the thick of it was the prosecution of a congressman in San Antonio, Texas — the racketeering and corruption case of former U.S. Congressman Albert Bustamante," Attanasio said. "I was very young, and it was a long trial in a hostile environment, but that's when I knew I was in the right business."
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