WASHINGTON -- The Roger Clemens perjury retrial could turn into an ad hoc forum on the general problem of drug use in baseball, depending on the outcome of the latest lawyers' spat over the landmark congressional hearing that eventually landed the seven-time Cy Young Award winner in court.
As jury selection inched forward Thursday -- the panel was narrowed to 36, and opening arguments were set for Monday afternoon -- the government responded to plans by Clemens' lawyers to challenge whether the 2008 hearing in which Clemens testified was a "competent tribunal."
Fine, responded the government. If the defense does that, prosecutors should be able to introduce all sorts of evidence to show why Congress called the hearing. In a filing with the court, the government said it should be allowed to have testimony about "drug use by other major league players," including "more detailed testimony regarding the use of steroids by Jose Canseco" as well as testimony related to teenage suicides attributed to steroid use.
"Put simply: defendant cannot have it both ways," the government's filing said.
Clemens' lawyer, Rusty Hardin, has indicated throughout the week that he plans to raise doubts about the hearing. Hardin told one prospective juror: "There's going to be a challenge by the defense as to the propriety of the hearing ... and the way it was conducted." Hardin has filed a brief suggesting the hearing wasn't "competent" because it wasn't an attempt to gather facts that could help Congress do its job of creating laws.
At the same time, the Clemens team doesn't want its client to be a victim of any sort of "guilt by association" with other players. His lawyers have already asked the court to bar Clemens' former teammate, Andy Pettitte, from testifying that he received human growth hormone from Brian McNamee, the same trainer who says he injected Clemens with steroids and HGH.
U.S. District Judge Reggie Walton is expected to hear oral arguments on both motions Monday. He had hoped to rule on the Pettitte matter Thursday, but the time-consuming jury selection took up the entire court day before the judge cut the session short to attend a previously scheduled engagement.
Walton also plans to select the final 12 jurors and four alternates on Monday morning, the fifth day of the trial. That's one day longer than it took to seat the jury for Clemens' first trial last July.
Clemens is accused of lying when he said he never used steroids or HGH at the 2008 congressional hearing and at a deposition that preceded it. Last year's mistrial was called after the government showed the jury evidence that had been ruled inadmissible.
The specific charges are that Clemens obstructed Congress, made false statements and committed perjury, and Hardin this week frequently gave prospective jurors what sounded like a preview of his closing argument as he spoke about the various standards of proof.
"Somebody might be wrong in what they say under oath," Hardin told one prospect Thursday, "but it might not be a deliberate or intentional lie."
The court went through 70 Washingtonians before finding 36 qualified to move on to the next round. The extra 20 are needed because Clemens' lawyers are allowed to strike 12 candidates and prosecutors eight, without giving any reason.
Among those dismissed Thursday were government employees who said they couldn't be completely impartial. Another was excused after she said she didn't think it was appropriate for the government to prosecute someone for lying to Congress. And a woman was dismissed after saying she did research on the case and wrongly asserted that defense attorneys caused last year's mistrial.
The eight prospective jurors who made the cut included an analyst for the Nuclear Regulatory Commission, a Treasury Department official and a librarian at the American Council on Education.
Also staying in the pool was a law enforcement worker in the city's subway system who was asked by Hardin what Clemens should do if his lawyers "mess up."
"He should fire y'all and get some more," she said.
Many in the courtroom laughed. Even Clemens reacted with an animated nod of the head.