Attorneys sought juror connections

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If you listened to the language and the rhetoric of the lawyers over the past several days in court as they selected the jury that will decide the Roger Clemens perjury case, it sounded as if they were searching diligently for fair and impartial jurors.

That's the last thing they wanted.

The prosecutors, Daniel Butler and Steven Durham, and Clemens' lead lawyer agreed on one thing -- they looked for jurors who were leaning in their respective directions.

If attorneys couldn't be sure potential jurors were leaning in their direction (and they couldn't be), they used the questions to connect with the jurors on some personal level and to lay the foundation for the evidence and the arguments they will present during the trial.

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Clemens' lawyer, Rusty Hardin, one of America's great trial lawyers, demonstrated his prowess in the final phase of the jury selection Tuesday.

When a prospective juror mentioned he was a Redskins fan, for example, Hardin quickly said, "I know what you think of the Cowboys."

When the juror replied that he "didn't care much for the Cowboys," Hardin was ready. Pointing to Clemens sitting at the trial table, he told the juror, "Don't forget that we are from Houston."

The same juror, who now is a member of the panel that will decide whether Clemens is guilty, hesitated and looked puzzled when Hardin asked him for the ages of his four children. Reacting instantly to the juror's distress, Hardin assured the juror: "Don't worry -- if you're incorrect, they will never know it."

When Hardin noticed another prospective juror carrying a cyclist's helmet, he asked whether the juror had ridden a bike to the courthouse. The juror replied, "Yes, I left it outside the building, and I hope it is still there when I leave."

Hardin then asked him, "Have you ever been a victim of a crime?" When the juror said he had not been a victim of a crime, Hardin assured him, "You're on a roll. Your bike will be there."

Prosecutors Durham and Butler, like prosecutors everywhere, relied less on personal charm and more on the dignity and the importance of their roles as representative of the U.S. government. They were nearly robotic in their approaches but did probe each potential juror about whether he or she was a sports fan, finding that almost all were not interested in sports and did not have favorite teams.

Hardin also used the jury selection process to set up issues that he will pursue as the trial continues.

As he interviewed the prospective jurors, he repeatedly asked them to agree with him that the "U.S. government can be wrong." The jurors always agreed, including several who work for government agencies.

He reminded the potential jurors that Clemens, as he sat in the courtroom during the jury selection process, was not guilty, telling the jurors that "you cannot change your mind on that until the government proves him guilty beyond a reasonable doubt."

It also was apparent from Hardin's questions to jurors that he will attack the congressional investigation into performance-enhancing drug use in Major League Baseball.

"We want to keep Congress out of everything, but we really want to keep Congress out of sports, don't we?" he asked a juror, who quickly agreed with Hardin.

It appears that as Clemens faces powerful evidence that he lied to Congress, Hardin will try to turn the jury's attention to the House committee that investigated MLB.

If Congress did not pass any legislation, Hardin will argue, why was it conducting the hearing?

It's a legal technique known as jury nullification, persuading the jury that even though there is evidence of guilt, it is of no consequence. It's a tricky maneuver that frequently backfires, but Hardin and Clemens face a situation in which they must try anything and everything.

With both Hardin and the prosecutors performing at high levels, the jury selection process offered a preview of the trial. Despite the apparently powerful evidence against Clemens, Hardin's defense will make it a close call.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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Lester Munson

Legal Analyst

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• Senior Writer and Legal Analyst, ESPN.com
• 13 years as investigative reporter at Sports Illustrated
• Adjunct Instructor, Northwestern's Medill School of Journalism