By JOSEPH WHITE, Associated Press
WASHINGTON (AP) — The day was a perfect microcosm of the Roger Clemens perjury trial. The lawyers spent more than an hour arguing over a witness who ended up testifying in front of the jury for about five minutes — about a topic the judge isn't sure is even relevant to the case.
Also, a new wrinkle was revealed in a trial that's already run way longer than expected: One of the jurors is leaving soon for a six-month trip to Germany.
The predicament over the juror headed to Europe on June 19 might be more crucial than else anything heard in court Tuesday in the trial to determine whether Clemens lied to Congress in 2008 when he denied using steroids and human growth hormone. If the juror is excused, the final alternate would be added to the 12-person panel — a cyclist and gym rat who said during jury selection that he knows people who have used steroids.
Clemens' lawyer Rusty Hardin doesn't appear to want that man deciding his client's fate. Hardin lobbied U.S. District Judge Reggie Walton to keep the Europe-bound juror on the panel, confident the trial will be over by then.
"I think the schedule's going to take care of it," Hardin said.
Hardin said the defense hopes to rest by the end of this week, but the trial's schedule is littered with partial days and off-days due to various conflicts. Two days will be missed next week while the judge is out of town. Plus, Walton noted that it's difficult to predict how long deliberations will take.
"The (John) Edwards case took eight or nine days," he said. "If that happens here, we're in real trouble."
Three jurors have already been dismissed, including two who were caught sleeping during the trial. Another juror has been suspected of sleeping, but she remains on the panel for now.
The trial, originally projected to last four to six weeks, is in its eighth week, and the first witness Tuesday was another frustrating exercise in the slow pace of justice. The defense wanted to ask broadcaster Joe Angel about comments he made during a pair of broadcasts of a series between the Toronto Blue Jays and Florida Marlins in 1998.
Angel had barely taken the stand when the jury was whisked out of the courtroom. His testimony has to do with whether Clemens attended a mid-day pool party at Blue Jays teammate Jose Canseco's house on June 9, 1998. Clemens said at his congressional deposition in February 2008 that he wasn't at Canseco's house that day. The government says that was a lie, and so one of the lesser charges against the former pitcher is that he obstructed Congress with that statement.
But the judge wanted to know what, if anything, the party has to do with whether Clemens used performance-enhancing substances. Walton sounded open to dismissing the allegation because it wasn't "material" to the case. Hardin naturally agreed and expressed shock that prosecutors were "seeking to make (Clemens) a felon" over such a matter.
Prosecutor Steven Durham countered that both Congress and Clemens' lawyers had made the party a significant issue. Clemens' strength coach, Brian McNamee, said he saw Clemens and Canseco speaking with a third unknown man at Canseco's house that day, an incident that McNamee later associated with Clemens' alleged request for a steroids shot days later. The jury had heard earlier that Canseco was a known steroids user.
If Clemens wasn't at the party, Hardin has argued, that would call into question the overall credibility of the government's key witness. McNamee has testified that he injected Clemens with performance-enhancing drugs in 1998, 2000 and 2001.
Walton decided to keep the pool party in the trial, at least for now. He said the issue of Clemens' attendance did appear to be important to Congress back in 2008 and it would be up to the jury to decide if it is material to the overall case.
But the lawyers weren't finished. They then went back and forth over what Angel could say on the stand. Angel was even brought in for a sort of dress rehearsal to answer questions from the judge and lawyers with the jury still out of the room.
Eventually, it was decided that Angel, who was a broadcaster with the Marlins at the time, could say in front of the jury that he saw Clemens at a golf course between 8:30 a.m. and 9 a.m. on June 9 — hours before the Canseco party. He added, though, that it usually took up to 4 ½ hours to play a round of golf at that club.