A man whose response to jury duty was "No, no, no, no, no" and who said he would rather be sleeping was nevertheless found qualified to remain a potential juror in Roger Clemens' perjury trial, which won't finish seating a panel before Monday.
The court took time out to debate whether Clemens' former teammate Andy Pettitte could identify his source of human growth hormone as the trainer who allegedly supplied Clemens with performance-enhancing drugs. U.S. District Judge Reggie Walton said he would try to resolve the issue Thursday.
The reluctant potential juror, a self-described unemployed 27-year-old, said he was a fan of basketball but not baseball -- "It's not my sport" -- and didn't know who Clemens was. The prospective juror had plenty of company: Lots of Washingtonians questioned since jury selection began Monday said they had never heard of the seven-time winner of the Cy Young Award. Several of those who had heard of him couldn't name any teams he played for (the Red Sox, Blue Jays, Yankees and Astros).
Clemens lawyer Rusty Hardin seemed a little concerned when the 27-year-old said he'd rather be asleep and that he felt "groggy." But when Hardin asked the man if he could focus on a full day of testimony, the would-be juror replied, "Be wide awake."
Clemens is on trial on charges he lied at a 2008 U.S. House hearing and at a deposition that preceded it when he denied using steroids and HGH during his 24-season major league career.
The first attempt to bring the case before the court ended in a mistrial last July, when prosecutors played a videotape for the jury that contained a short segment of inadmissible evidence.
Jury selection dragged on Thursday morning like a long rain delay in baseball. Four of six jurors questioned were excused for one reason or another. Two, who were government employees, said they couldn't be completely impartial in the case. Another did research on the case and wrongly asserted that defense attorneys caused last year's mistrial by showing improper evidence. And a fourth was excused after she said she didn't think it was appropriate for the government to prosecute someone for lying to Congress.
The court has been working for more than three days to narrow the initial jury pool of 90 to 36, from which the final 12 jurors and four alternates will be selected. The extra 20 are needed because Clemens' lawyers are allowed to strike 12 candidates and prosecutors eight -- without giving any reason.
By midmorning Thursday, 30 potential jurors had survived the first cut. Judge Walton hoped to pick the other six Thursday and have a jury empaneled Monday. The trial is in recess Friday.
On the trial testimony issue, Pettitte is expected to say that Clemens acknowledged using human growth hormone in 1999 or 2000. Clemens famously told Congress in 2008 that Pettitte "misremembers" their conversation. Pettitte is also expected to say he tried HGH himself a few years later.
Prosecutors want Pettitte to be allowed to testify that the source of his HGH was Clemens' former strength trainer, Brian McNamee, who says he injected Clemens with steroids and HGH.
Clemens' lawyers claim that would be "classic `guilt by association' evidence." Invoking their client's choice of vocabulary, they wrote in a court filing, "The government apparently misremembers what the defense has said repeatedly about Mr. Pettitte."
"We welcome Mr. Pettitte's appearance, when he will presumably testify, as he did in his deposition, that he `must have misunderstood' Mr. Clemens," the lawyers wrote.
Prosecutor Steven Durham said in court that the source of Pettitte's HGH was crucial to the story. Durham noted that Pettitte and Clemens frequently worked out together with McNamee over several years.
"You cannot strip out half of the narrative and have it make any sense whatsoever," he said.