Roger Clemens trial: Jurors come with questions, and get to ask them

May 15, 2012

The Washington Post on May 14, 2012 released the following:

“By Del Quentin Wilber and Ann E. Marimow,

Jurors wondered whether key evidence might have been planted and if a former drug dealer regretted having “destroyed people’s lives.” And at least one wanted more testimony about a heated discussion that wasn’t fully explored in court.

Those are the types of questions that might pop into the head of a juror during any criminal trial. And that is usually where those questions remain, locked away until jurors are finally permitted to discuss the case during their deliberations.

But in the perjury prosecution of Roger Clemens, jurors have been asking those very questions in court — providing a rare and real-time window into the thought process of the 15 District residents sitting in judgment of one of baseball’s biggest legends. The questions, reviewed by the presiding federal judge before being posed to witnesses, have revealed that at least some jurors seem skeptical of the prosecution and want to know more about off-limits testimony.

The federal judge, Reggie B. Walton, has long advocated engaging jurors more directly in trials by letting them ask questions, and he has told fellow judges that the practice ensures jurors are attentive and properly understand key testimony.

Walton, who has lectured on the topic at the National Judicial College, permitted such questions during another big trial — that of I. Lewis “Scooter” Libby in 2007, a decision that was later hailed as a “terrific idea” by the case’s initially doubtful prosecutor.

In federal court, judges have the authority to allow jurors to query witnesses, though the practice remains uncommon. In recent years, the procedure has gained traction in academic circles and has been occurring with more frequency in state courts, legal experts say.

“The old view of jurors is that they are blank slates,” said Shari Seidman Diamond, a professor at the Northwestern University School of Law. “But they are decision-makers, trying to figure out what is going on. They are trying things out. Questions help them process. This has all kinds of benefits.”

In the Clemens trial, the questioning has worked this way:

After each witness has finished testifying, Walton asks the jury if it has any questions. The 12 jurors and three alternates — one juror has already been excused, for sleeping — represent a broad cross-section of District residents. Among them are a Giant food clerk, a retired political science professor, a former ANC commissioner, a WMATA security officer and a Treasury Department official.

Sometimes jurors submit questions on note cards, sometimes they don’t. Walton then discusses the questions with prosecutors and defense lawyers during a private discussion at the bench, where either side can object to the query. Walton does not pose a question if he feels it is not legally permissible.

This account is based on transcripts of those private bench conferences:

So far, the jurors’ questions indicate that some seem uneasy with aspects of the government’s case. After federal agent Jeff Novitzky testified two weeks ago, for example, a juror asked about the authenticity of evidence that Clemens’s former strength coach, Brian McNamee, turned over to authorities in 2008. The strength coach claims to have injected Clemens with steroids and human growth hormone (HGH) and saved syringes and cotton balls in a crumpled beer can. Prosecutors say scientists have linked Clemens’s DNA and steroids to one syringe found in the can.

“Could this evidence be planted evidence?” one juror wanted to know.

“McNamee had access to [Clemens’s] blood, plus using cotton balls with tissues to wipe it clean, correct?” the juror continued.

“He also had access to needles, is that correct?”

“Is this evidence really conclusive?”

After reading the questions to prosecutors and defense lawyers, Walton said “that’s for them to decide,” meaning the jurors.

“I am not sure any of those questions are appropriate for this particular witness,” said Assistant U.S. Attorney Steven Durham.

Walton sided with Durham and did not ask the questions.

Jurors also wanted to hear more from Andy Pettitte, a former teammate and close friend of Clemens’s who had been considered a key prosecution witness. The left-handed pitcher, who is making a comeback this season after having retired, told jurors that Clemens confided in him during a workout in 1999 or 2000 that he had taken HGH. But on cross-examination, he agreed with a defense attorney that there was a “fifty-fifty” chance he had misheard what Clemens had told him.

During questioning by a prosecutor, Pettitte briefly mentioned that he approached McNamee after Clemens’s revelation and the strength coach got upset. A prosecutor quickly stopped Pettitte from going any further because such testimony would violate hearsay rules.

A juror clearly picked up on the exchange and wanted to know, “When you talked with McNamee about HGH, he got upset. Can you speak about that incident?”

Walton did not ask the question, telling attorneys that he did not “understand the rationale how somehow McNamee’s reaction to what Pettitte tells him helps the jury.”

McNamee took the stand on Monday, and jurors could get the chance to ask the star prosecution witness questions by as early as Tuesday or Wednesday.

Last week, jurors sought clarity from the trial’s most colorful witness, Kirk Radomski, a former steroid supplier who testified in a thick Bronx accent that he sold the drugs to many ballplayers and to McNamee. Jurors wanted to know about a torn address label, among other matters.

In 2008, three years after federal agents raided his home, Radomski found several mailing slips and photographs in an envelope under a television in his bedroom that had been missed in the original search. One of those slips, which was torn and did not include tracking numbers, was addressed to “B. McNamee” at Clemens’ home in the Houston area. Radomski testified that the label belonged to a package of HGH and needles that he sent to McNamee.

A juror wanted to ask Radomski a follow-up question about how he had discovered the labels. And another wanted to know if Radomski had turned over other such slips to authorities in recent years. Walton chose to pose both queries to the former dealer.

Other jurors wanted to know if it was “common for strength and conditioning coaches to deliver steroids or HGH to athletes,” whether Radomski had discussed the case with prosecutors during a recess and how he felt about having “destroyed people’s lives by your actions.”

And, finally, a juror wanted to ask Radomski if he and McNamee had ever discussed Clemens. Michael Attanasio, one of Clemens’s attorneys, told Walton that he thought he had already asked that very question.

“I thought he said no,” Walton said.

“He did.”

“That’s why questions are good,” Walton said, “because sometimes jurors don’t hear it.””


Douglas McNabb – McNabb Associates, P.C.’s
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The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at or at one of the offices listed above.

News Guide: Key details in Clemens perjury trial

April 16, 2012

Associated Press on April 16, 2012 released the following:

“WASHINGTON (AP) — Roger Clemens’ second perjury trial began Monday, following a mistrial in the first case when prosecutors showed inadmissible evidence to the jury.

The famed former pitcher is accused of ying to Congress in 2008 when he said he never used performance-enhancing drugs.

The new trial, which begins with jury selection, is expected to last four to six weeks.

Some key data and figures in the case:



Three counts of making false statements, two counts of perjury and one count of obstruction of Congress.


If convicted on all counts, Clemens could face up to 30 years in prison and a $1.5 million fine. But with no prior criminal record, under U.S. sentencing guidelines, he would probably face no more than 15 to 21 months in prison.


Former baseball stars Barry Bonds and Jose Canseco were on the list of 104 potential witnesses or people who might be mentioned at trial that was read to the jury pool. In addition to Bonds and Canseco, prosecutors said they might call baseball commissioner Bud Selig and New York Yankees general manager Brian Cashman. Clemens’ attorneys said they might call his former teammates Paul O’Neill, Jorge Posada and Mike Stanton and baseball writer Peter Gammons.


U.S. District Judge Reggie Walton asked 90 potential jurors 86 yes-or-no screening questions designed to uncover personal history or attitudes, medical problems or scheduling conflicts that might reveal potential prejudice or an inability to serve. Among them: “Do you have any opinions about Major League Baseball – good, bad or whatever?” Jury pool members who had “yes” answers marked them on a sheet of paper. The lawyers and judge then began questioning them individually about those answers. In addition to people disqualified by the judge for cause, the defense will be allowed reject 10 potential jurors and the prosecutors can veto six – without explanation – until 12 are seated. Then each side will get two such unexplained strikes until four alternates are chosen, in case any jurors have to drop out during the trial.


– Roger Clemens: The famed pitcher, who won a record seven Cy Young Awards, said he never used steroids or human growth hormone during his baseball career. But prosecutors maintain he lied and broke the law when he made that denial under oath to a congressional committee in 2008.

– Brian McNamee: The strength trainer who worked out with Clemens for a decade, he helped mold The Rocket into one of the most feared power pitchers in the major leagues, even into his 40s. McNamee maintains he injected Clemens with steroids and human growth hormone – and saved the needles, which will be evidence at trial. He’ll be the prosecution’s most important witness.

– Andy Pettitte: The pitcher and former teammate of Clemens – with both the New York Yankees and Houston Astros – is the only person besides McNamee who says Clemens acknowledged using drugs. Clemens has said his former friend is “a very honest fellow” but insists he “misremembers” their conversation, said to have taken place in 1999 or 2000.

– Kirk Radomski: The former batboy with the New York Mets was the primary source behind the 2007 Mitchell Report examining the use of performance-enhancing drugs in Major League Baseball. Radomski has admitted providing drugs to dozens of players, and McNamee says he got the drugs for Clemens from Radomski.

– U.S. District Judge Reggie Walton: The judge is a former athlete himself – he went to college on a football scholarship. In declaring a mistrial last year, Walton blamed prosecutors for a mistake that a “first-year law student” wouldn’t make. No stranger to high-profile cases, he presided over the trial of former Vice President Dick Cheney’s onetime chief of staff, Scooter Libby.

– Rusty Hardin: Clemens’ lead attorney has a reputation for winning jurors over with plenty of Southern charm and colorful quips aimed to bring down opponents.

– Assistant U.S. Attorney Steven Durham: One of two prosecutors who worked on the original case last summer, which ended in a mistrial because prosecutors showed the jury inadmissible evidence, Durham is chief of the public corruption unit at the U.S. attorney’s office in Washington.”


Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Federal Indictment


To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at or at one of the offices listed above.