WASHINGTON -- As the jurors in the Roger Clemens perjury trial completed their 22nd day and listened to the 21st government witness, they were increasingly restive, demanding and skeptical.
In questions that the jurors submitted to three witnesses Thursday, they showed that they were willing to ignore rulings from U.S. District Judge Reggie Walton, that they wanted to hear more from former MLB player David Segui, and that they were doubtful about the qualifications and testing procedures of a government steroids expert.
Unlike most federal judges, Walton permits jurors to ask questions of each witness after the prosecutors and defense attorneys have completed their interrogations. Walton decides what questions are permissible and often rejects many of them. But the questions that make it through offer a look at what the jury is thinking.
Prosecutors presented Segui in an attempt to restore some level of credibility to their star witness, former Clemens trainer Brian McNamee, who was forced to admit numerous lies and exaggerations in a withering cross-examination.
Relying on a rarely used procedure and a favorable ruling from Walton early Thursday, Assistant U.S. Attorney Gilberto Guerrero Jr. asked Segui about a statement McNamee made about the physical evidence that he claims he collected from Clemens in 2001. Segui told the jury that in 2001, McNamee told him he had saved physical evidence of steroid use from some players to placate his wife.
His wife, McNamee told Segui, was unhappy with the amount of time McNamee was spending with Clemens and about Clemens' failure to pay McNamee what Clemens promised.
Segui's account of McNamee's statement in 2001 confirmed what McNamee said earlier in the trial -- that he saved the physical evidence to restore a level of peace at home. In his cross-examination, lead Clemens attorney Rusty Hardin suggested that the story of placating his wife was a recent fabrication. Segui's account of McNamee telling the story earlier showed the jury that McNamee had given the same account before the government began to investigate him and possibly before he had any incentive to lie.
Bringing Segui in to testify is a measure of the desperation in the government's attempt to restore some level of veracity for McNamee. And it's a measure of the destruction of McNamee that Hardin achieved in his three days of cross-examination.
Guerrero also asked Segui about a "second conversation with Mr. McNamee about steroid use among baseball players." Because Segui could not give any estimate of the timing of the second conversation, Walton would not permit Segui to describe the conversation. To implement his ruling, Walton told the jurors they must ignore Guerrero's question and could not consider it in their deliberations.
But, in defiance of Walton's ruling, one of the jurors demanded the particulars of the "second conversation." Clearly irritated that the juror ignored his ruling, Walton again told the jury that it was barred from any consideration of the "second conversation."
The question about the "second conversation" was not something the Clemens lawyers wanted to hear. They had objected strenuously when Guerrero initiated the inquiry, and Walton had ruled in their favor. And they certainly didn't want to hear about it again in a question from a juror. They were hoping the jurors had either missed the question or had followed Walton's ruling to ignore it.
The jurors also showed their independence and their skepticism when they demanded to know more about the qualifications and the findings of a chemist named Jeremy Price. Price did the laboratory work that showed steroids on two needles and a swab that came from McNamee's trove of physical evidence.
The jurors demanded to know more about Price's qualifications even though Walton had ruled that he was an expert in forensic chemistry and steroids. The Clemens defense team had not questioned Price's credentials.
Although Price had testified in considerable detail about lab work that he had done personally and the findings he had made, the jurors also wanted to know more. They asked, What is the role of Price's supervisor? Who had the "responsibility for the ultimate findings?" another juror asked.
It is not a good sign for the prosecutors when a witness they offer as an expert provokes jurors to challenge both his credentials and his lab work.
Walton adopted the idea of allowing juror questions because he thought it showed respect for the citizens serving as jurors and because he thought it would give the jurors a chance to become more involved in the trial. But, in an unintended consequence of an interesting attempt at courthouse reform, the questions from the jurors offer a look at what they are thinking during the trial.
Both sides now know something about the jury that they did not know before the jurors asked their questions. And both sides have something to worry about.