By JOSEPH WHITE, Associated Press
WASHINGTON (AP) — Among the 29 questions the Roger Clemens jury wanted to ask the pitcher's chief accuser, Brian McNamee, one cut to the heart of the case.
"Why should we believe you when you have shown so many inconsistencies in your testimonies?"
"I won't ask that," U.S. District Judge Reggie Walton declared during a bench conference with trial attorneys to decide which juror questions he would read. "That's for them to decide."
The question makes it sound as if at least one of the jurors in the perjury case has serious doubts about the credibility of the government's key witness against the 11-time All-Star pitcher.
Or it could be that the juror believes McNamee, but wanted to play devil's advocate just to make sure.
If the World Series can have days off, so can trials of baseball players. The court did not sit Tuesday because the judge had another obligation, a timely pause following five-plus grueling days of testimony from the government's key witness. In addition, Walton's practice, rare among judges, of allowing jurors to submit their own questions allows an unusual mid-trial glimpse of how the case looks to those whose opinions will ultimately matter most.
Clemens is charged with lying to Congress when he testified in 2008 that he had never used steroids or human growth hormone. McNamee, Clemens' longtime strength coach, says he injected Clemens with steroids in 1998, 2000 and 2001 and with HGH in 2000. He is the trial's only witness to claim firsthand knowledge of Clemens using those substances.
Of course, when the World Series takes a break, it's easy to tell who is winning. Definitive scores are kept. The first team to get four victories takes home the trophy.
The subjective nature of a jury trial makes such score-keeping impossible, especially when considering that this jury cares little about baseball and knew little or nothing about Clemens at the outset. The government might end up having the better case, but by then the jurors might have been put off by a plodding presentation by prosecutors that is literally putting people to sleep. Two jurors have already been dismissed for dozing off during a trial now in its sixth week.
Clemens' top lawyer, Rusty Hardin, could have the opposite problem. He is colorful, witty and displays the type of courtroom personality lacking by the government, but his scattershot method of cross-examination is confusing and sometimes hilarious. A defense lawyer wants to create confusion and doubt among the jurors, but there's also the possibility that the panel will perceive Hardin as someone putting on an act that's more style than substance.
The trial was always going to revolve around McNamee's credibility — it's not an understatement that he is 95 percent of the government's case — so the jurors' impressions of him are crucial. On Monday, they wrote their questions for him on index cards supplied by the court. The judge then huddled with lawyers from both sides out of earshot of the jury to decide which ones can be asked. The transcript of those discussions was made available Tuesday.
The sheer fact that there were 29 questions shows a degree of uncertainty about McNamee's testimony. At least two questions dealt with how McNamee came to assume that Clemens had previously used steroids in 1998. (McNamee essentially says he pieced it together through fragments of overheard conversation and locker room innuendo.) Someone wanted to know how McNamee could have been "surprised" to see HGH items in a shaving kit in Clemens' bathroom before injecting Clemens' wife, Debbie, sometime around 2003. (McNamee said he ordered the shipment on a previous visit to the Clemens house in Houston and had forgotten about it.)
One question referred to a couple of "email threads" between Clemens and McNamee. The judge and Clemens' lawyer, showing a deficiency in cyber-vocabulary, were perplexed. Prosecutor Daniel Butler had to explain: "In other words, a series of emails."
"I never heard the word 'thread' used in that context," Walton said.