- T.J. Quinn
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WASHINGTON -- Roger Clemens' own strategy might undermine his case.
U.S. District Judge Reggie Walton said Wednesday morning that if Clemens is going to accuse former strength trainer Brian McNamee of conspiring to blackmail him with tainted evidence, as his attorney said a day earlier, the government should be able to question other former Yankees about the drugs McNamee gave them.
Walton will not officially rule until the government is ready to call the players to the stand.
But Walton revisited the issue after hearing Clemens' attorney, Rusty Hardin, lay out the defense's strategy.
Hardin said McNamee, the subject of a rape investigation in 2001, manufactured evidence against Clemens to show that the All-Star pitcher had been injected with performance-enhancing drugs. McNamee was worried about losing his job as the Yankees' strength coach, Hardin said, and planned to blackmail Clemens into hiring him.
But if McNamee gave the other players drugs, Walton said Wednesday, it wouldn't make sense to blackmail someone who didn't receive them. Making that argument, Walton said, opens the door for the Yankees players' testimony.
Clemens is charged with six felony counts, including perjury, false statements and obstruction of Congress, which carry a maximum sentence of up to 30 years in prison and a $1.5 million fine. But even if jurors convict him on all counts, it's unlikely Clemens would serve nearly that long because he doesn't have a criminal record.
The judge told prospective jurors that jury selection would take at least three days to complete.
Clemens turned to face the 50 potential panelists as they filed into the courtroom, nodding at a couple but mostly sitting with no expression as the judge questioned them. Hardin pointed out Clemens' wife, Debbie, who was sitting in the back of the courtroom, and said she likely would testify for her husband. She stood and gave a little wave.
Wade Boggs and David Cone are among 10 former ballplayers or people associated with the game whom Clemens' attorneys said could be either called as witnesses or mentioned as part of their defense against charges he lied to Congress about the use of performance-enhancing drugs. Prosecutors listed nearly 100 people who could be part of their case either by mention or on the witness stand, including players Barry Bonds, Mark McGwire, Sammy Sosa, Jose Canseco, Jason Giambi, Jason Grimsley, Jorge Posada, David Segui, Pettitte, Knoblauch and Stanton.
Jurors were asked about their knowledge of those figures as well as their feelings about the case, baseball, Congress and the law. They were asked whether they played organized sports, read sports news or were baseball fans. One woman was not. "I can't imagine spending money to watch a sport where guys scratch themselves and spit a lot," she said, drawing a smile from Clemens, who otherwise sat expressionless through most of the proceedings.
Another potential juror, former personal trainer and Little League coach Omari Bradley, said he was an avid sports fan who has seen a media drumbeat that Clemens should just admit he used PEDs. Hardin asked, "Can you be one of the few men in America not to be affected by it, or are we going to start out this trial with you thinking he probably did it?"
Bradley, 37, responded it would be difficult for him to find Clemens not guilty. The judge excused him.
The initial trial day began with a vigorous debate over the tape of Clemens' deposition to House Government Reform Committee staff on Feb. 5, 2008. Ten of the 15 false or misleading statements Clemens is accused of making to Congress came during that deposition -- the other five were during a public hearing eight days later.
The House publicly released a transcript of the deposition, which was held behind closed doors, and prosecutors say the House initially indicated it would turn the audio recording over as evidence for the trial. But William Pittard, a lawyer for the House, appeared in court Wednesday and told Walton that the House clerk has the tape and it can be released only by a House resolution.
Hardin angrily responded that if jurors are to determine whether Clemens intended to obstruct Congress, "tone of voice becomes critical." He said the House referred Clemens for prosecution and should not then be able to choose which evidence to turn over.
Walton said he agreed that "it doesn't look good" to have Congress withholding evidence, but he didn't think he could force another branch of government to turn over material because of the Constitution's separation of powers. He raised his voice as he scolded the House for trying to "hide behind technicalities" and said if Clemens is convicted, the court might have to consider whether he was deprived of a fair trial without the tape.
Hardin said he had a subpoena prepared to hand to House attorney Pittard, but Walton said he couldn't allow that in the courtroom. Pittard replied that it might have been possible to arrange a resolution with more time. He criticized Clemens for implying Congress won't turn over material he never asked for before and for "waiving a subpoena around in the courtroom on the day his trial begins."
T.J. Quinn is a reporter for ESPN's Enterprise/Investigations unit. He can be reached at firstname.lastname@example.org. Information from The Associated Press was used in this report.
A federal judge has angrily criticized Congress for withholding an audio recording that lawyers want for the trial of pitching great Roger Clemens.