"Why should we believe you when you have shown so many inconsistencies in your testimonies?"
"I won't ask that," U.S. District Judge Reggie Walton declared during a bench conference with trial attorneys to decide which juror questions he would read. "That's for them to decide."
The question makes it sound as if at least one of the jurors in the perjury case has serious doubts about the credibility of the government's key witness against the 11-time All-Star pitcher.
Or it could be that the juror believes McNamee, but wanted to play devil's advocate just to make sure.
If the World Series can have days off, so can trials of baseball players. The court did not sit Tuesday because the judge had another obligation, a timely pause following five-plus grueling days of testimony from the government's key witness. In addition, Walton's practice, rare among judges, of allowing jurors to submit their own questions allows an unusual mid-trial glimpse of how the case looks to those whose opinions will ultimately matter most.
Clemens is charged with lying to Congress when he testified in 2008 that he had never used steroids or human growth hormone. McNamee, Clemens' longtime strength coach, says he injected Clemens with steroids in 1998, 2000 and 2001 and with HGH in 2000. He is the trial's only witness to claim firsthand knowledge of Clemens using those substances.
Of course, when the World Series takes a break, it's easy to tell who is winning. Definitive scores are kept. The first team to get four victories takes home the trophy.
The subjective nature of a jury trial makes such score-keeping impossible, especially when considering that this jury cares little about baseball and knew little or nothing about Clemens at the outset. The government might end up having the better case, but by then the jurors might have been put off by a plodding presentation by prosecutors that is literally putting people to sleep. Two jurors have already been dismissed for dozing off during a trial now in its sixth week.
Clemens' top lawyer, Rusty Hardin, could have the opposite problem. He is colorful, witty and displays the type of courtroom personality lacking by the government, but his scattershot method of cross-examination is confusing and sometimes hilarious. A defense lawyer wants to create confusion and doubt among the jurors, but there's also the possibility that the panel will perceive Hardin as someone putting on an act that's more style than substance.
The trial was always going to revolve around McNamee's credibility -- it's not an understatement that he is 95 percent of the government's case -- so the jurors' impressions of him are crucial. On Monday, they wrote their questions for him on index cards supplied by the court. The judge then huddled with lawyers from both sides out of earshot of the jury to decide which ones can be asked. The transcript of those discussions was made available Tuesday.
The sheer fact that there were 29 questions shows a degree of uncertainty about McNamee's testimony. At least two questions dealt with how McNamee came to assume that Clemens had previously used steroids in 1998. (McNamee essentially says he pieced it together through fragments of overheard conversation and locker room innuendo.) Someone wanted to know how McNamee could have been "surprised" to see HGH items in a shaving kit in Clemens' bathroom before injecting Clemens' wife, Debbie, sometime around 2003. (McNamee said he ordered the shipment on a previous visit to the Clemens house in Houston and had forgotten about it.)
One question referred to a couple of "email threads" between Clemens and McNamee. The judge and Clemens' lawyer, showing a deficiency in cyber-vocabulary, were perplexed. Prosecutor Daniel Butler had to explain: "In other words, a series of emails."
"I never heard the word `thread' used in that context," Walton said.
"I haven't either," Hardin said.
The jury has been ushered in and out of the courtroom repeatedly during the trial. At other times, they're subjected to listening to "white noise" from the speakers while the judge and lawyers hold lengthy conferences. They are fully aware that they're not being told everything, and one was curious about an email that had a huge portion blacked out in the middle.
"May the jury see the complete email and the rest of the email trail?" the juror wrote on the card.
The answer was no. The deleted portion dealt with an incident in Florida in 2001, when McNamee was investigated for an alleged sexual assault involving a woman who was found to have a date rape drug in her system. He was not charged. The jury has only been told that McNamee was investigated for a serious offense and lied to investigators, but nothing more.
There was another significant question that was not asked, but it proved a boon to the government. The question: "Did you ever inject any other players with steroids or HGH?"
Clemens' lawyers objected to the word "inject." They already have a concern with the fact that McNamee was allowed to say he "provided" HGH to Clemens teammates Andy Pettitte and Chuck Knoblauch and that he helped another player, Mike Stanton, get those substances.
"That's the whole thing we've been fighting about, is this whole thing of injection," Hardin said.
A compromised was reached. McNamee would be allowed to say he was "present" for their HGH use. Given the chance to question McNamee once more, Butler, the prosecutor, rammed the point home: "Did Mr. Pettitte then use the growth hormone?" "Were you present when he used it?" "Did Mr. Knoblauch use the growth hormone?" "Were you present when he used it?" "And Mr. Stanton, did Mr. Stanton obtain growth hormone?" "Were you present when he used it?"
McNamee answered "Yes, sir" six times in a row.
Near the end of the huddle about the jury questions, Hardin was curious. Had Walton ever seen 29 submitted to one witness before?
"That's a record?" Hardin asked.
"That's the most," Walton said.