Commentary

Juror questions show skepticism

Questions of prosecution witness in Clemens trial indicate trouble for government

Updated: May 10, 2012, 6:44 PM ET
By T.J. Quinn and Lester Munson | ESPN.com

WASHINGTON, D.C. -- The questions that the jurors in the Roger Clemens perjury trial asked after the testimony of lead investigating agent Jeff Novitzky on Monday must have been a disappointment, even a shock, to the federal prosecutors trying to convince the jurors that Clemens lied to the U.S. Congress about his use of performance-enhancing drugs.

The questions, reviewed by ESPN on Thursday after they were filed with the court clerk, came after prosecutor Steven Durham and lead defense attorney Rusty Hardin had completed their questioning of Novitzky.

The procedure that U.S. District Court Judge Reggie Walton follows for each witness is to ask the jurors whether they have questions not asked of the witness by either prosecutors or defense attorneys. If jurors have additional questions, they write them on cards and submit them to the judge. The judge and the lawyers then discuss the questions in a sidebar conference out of the hearing of the jury and the media, and the judge decides what questions are permissible. The judge then asks the witness the permissible questions.

But in the questions that Walton viewed as impermissible, jurors expressed significant skepticism about two basic elements of the government's case. In the first such question, a juror wanted to ask Novitzky whether he "overstepped" his authority with "threats of jail if [Clemens trainer Brian McNamee] did not answer certain questions from Senator [George] Mitchell."

The question was a direct challenge to Novitzky, a creative and forceful investigator who is a remarkably articulate and persuasive presence in a courtroom. Such a question would be the last thing prosecutors wanted to hear from a juror.

The question not only showed some disbelief in a witness who should be a bulwark of the prosecution's case, but also showed the juror's doubts about the procedures that Mitchell followed in his investigation of steroids in Major League Baseball. With a federal agent like Novitzky present in the room as Mitchell questioned McNamee and Novitzky ready to threaten McNamee if he gave improper answers to Mitchell's questions, it raises the possibility that McNamee was telling them what they wanted to hear and not the truth.

A second juror question is even more disconcerting for the prosecution team. A juror wanted to ask Novitzky about the integrity of the physical evidence (syringes, gauze pads, cotton balls, vials and ampoules) that McNamee claims he kept after injecting Clemens with steroids and HGH. The trove of evidence, if it is what McNamee claims it is, would corroborate McNamee's story and is critical to the government's case.

"Could this evidence be planted evidence?" the juror asked. "Did anyone find it suspicious that this evidence surfaced this way, and in the way it was housed, [in a] beer can?"

This is a juror who was paying close attention to Novitzky's account of McNamee's delivering the physical evidence to Novitzky, seven years after McNamee collected it and placed some of it in a 16-ounce beer can.

The question represents the exact type of thinking the Clemens legal team was hoping to hear from a juror. Hardin, Clemens' lead attorney, has on numerous occasions attacked the integrity of the physical evidence and has promised the jury that he will present experts who will explain how McNamee could have fabricated the evidence.

It is always difficult to read the minds and the psyches of jurors as they listen to evidence that can be complicated and frequently boring. But these two questions from the Clemens jury show a level of skepticism about the government's case that can only be a major concern for the prosecutors.

T.J. Quinn joined ESPN in November 2007 as an investigative reporter for ESPN's Enterprise Unit, which is charged with developing long-form, investigative features to be presented across multiple platforms.