WASHINGTON -- Roger Clemens stood and uttered "Morning" to the 90 potential jurors who had gathered in the ornate, sixth-floor ceremonial courtroom, the one deemed big enough to hold them all. After he sat down, he swiveled his chair, as if trying to make eye contact with as many as possible.
Some of those looking back had no idea who he was.
The seven-time Cy Young Award winner made some $120 million in salary in his 24-year major league career, but it’s safe to say hardly any of it came from the first slate of District of Columbia residents who could decide whether he lied when he told Congress he had never used steroids or human growth hormone.
"I’m not a fan of sports—period," said one prospect, who works as a cashier at a grocery store.
Clemens was back in court Monday in the government’s second attempt to prove that he misled a House committee at a landmark drugs-and-sports hearing in 2008. The first trial last July ended in a mistrial when prosecutors introduced inadmissible evidence after only two witnesses had been called.
The retrial is expected to last four to six weeks, with the first several days devoted to finding 12 jurors and four alternates with no preconceived opinion about the case. The vetting process began with U.S. District Judge Reggie Walton taking more than an hour to read 86 yes-or-no questions, including "Do you have any opinions about Major League Baseball—good, bad or whatever?"
Lawyers on both sides read a list of 104 people who could be called as witnesses or whose names could be mentioned during the trial, including former sluggers Barry Bonds and Jose Canseco; baseball commissioner Bud Selig; New York Yankees general manager Brian Cashman; baseball writer Peter Gammons; and former Clemens teammates Paul O’Neill, Jorge Posada and Mike Stanton.
Perhaps the most important name was Brian McNamee, Clemens’ former strength trainer, who says he injected Clemens with steroids and human growth hormone and says he kept used needles that will be entered as scientific evidence at trial.
Clemens lawyer Rusty Hardin stressed to the jury pool that not all of those potential witnesses would be called, or else they "would be here about two years."
Clemens, wearing a gray suit with a stylish diagonal-patterned tie, gave a warm handshake to a court employee he recognized as he entered the courtroom. He read papers in a manila folder while waiting for the proceedings to start and occasionally took notes once jury selection was under way.
Clemens faces a maximum sentence of up to 30 years in prison and a $1.5 million fine if convicted on all six charges. Maximum penalties are unlikely because Clemens doesn’t have a criminal record, but Walton made plain at the first trial that Clemens was at risk of going to jail.
Under U.S. sentencing guidelines, Clemens probably would face up to 15 months to 21 months in prison.
When it came time to question the potential jurors one at a time—which took place in a smaller courtroom—the court began with those who knew or cared little about baseball. Three of the first four—all African-American females—said they didn’t know anything about Clemens.
"I really don’t care," said one potential juror, when asked for her thoughts about the use of steroids in sports. She was asked to return and remains in the pool.
The government has been criticized for pursuing the costly retrial against Clemens, an issue that was raised when one potential juror volunteered: "I don’t know if that’s the best use of government tax dollars at this time." She said her feelings could influence her ability to serve, and she was dismissed.
Stung from the embarrassment of last year’s mistrial, the government has a larger prosecution team, but the Clemens team won’t be outgunned. It has six lawyers working on the case, led by Houston lawyer Rusty Hardin, whose Rusty Hardin & Associates has represented sports stars such as quarterback Warren Moon, baseball star Wade Boggs and NBA great Scottie Pippen, each a Hall of Famer.
The essence of the case remains the same: Clemens is charged with perjury, false statements and obstruction of Congress for telling the House committee under oath, in both a public hearing and in a deposition with committee staff, that he hadn’t used performance-enhancing substances during his career.
Clemens’ lawyers will seek to discredit McNamee, who provided drugs to several professional baseball players and has acknowledged he hasn’t always told the truth about Clemens’ drug use and other matters. McNamee initially denied giving Clemens drugs, before admitting to federal agents he injected the pitcher. The defense team has said that the trainer fabricated the evidence.
Harder to discredit will be another prosecution witness, Andy Pettitte, a former Clemens teammate who recently came out of retirement to mount a comeback attempt with the New York Yankees. Pettitte says that Clemens, in a private conversation in 1999 or 2000, acknowledged using HGH. Clemens has said Pettitte "misremembers" their conversation.