WASHINGTON — Jury selection in the Roger Clemens perjury case was temporarily put aside Wednesday as the two sides argued over the scope of testimony that former teammate Andy Pettitte can provide.
The detour was the latest delay in picking a jury, which U.S. District Judge Reggie Walton said probably won’t be completed until next week.
Pettitte is expected to testify that Clemens acknowledged using human growth hormone in 1999 or 2000, and Pettitte will also say that 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 human growth hormone. Clemens denies using the drugs, and has said Pettitte “misremembers” their conversation.
In a filing with the court Wednesday, Clemens’ lawyers said that Pettitte’s use of HGH has nothing to do with Clemens. “The proffered evidence would be unfairly prejudicial to Mr. Clemens because it is classic ‘guilt by association’ evidence,” they wrote.
Prosecutor Steven Durham said in court that the source of the HGH was crucial to the story, noting that Pettitte and Clemens worked out together with McNamee.
“You cannot strip out half of the narrative, and have it make any sense whatsoever,” he said.
The government is trying to convict Clemens of lying to Congress in 2008 when he said he never used performance-enhancing drugs.
Jury selection has gone on for 2 ½ days, and Walton told some jurors to come back Monday, because the questioning of individual jurors won’t be finished this week.
The court is narrowing the initial jury pool of 90 to 36, from which to select the final 12 jurors and four alternates. The extra 20 are needed because Clemens’ lawyers are allowed to strike 12 candidates and prosecutors eight — without giving any reason.
By Wednesday afternoon, 24 jurors had survived the first cut.
“We’ve got to move this along,” Walton said.
Clemens, who once wore the pinstripes of the New York Yankees, showed up in a dark pinstriped suit for the second straight day. After going through security, he mentioned to his lawyer that he had gone for a run from the Capitol to the Washington Monument.
The only quick rounds of questioning involved jurors excused for one reason or another — including some who said religious prohibitions against judging others would prevent them from serving. One told U.S. District Judge Reggie Walton that justice was in God’s hands.
“Who’s supposed to do it while we’re here on Earth?” Walton replied.
On Tuesday, Clemens’ lawyer offered some clues to his strategy once testimony gets under way, including a challenge to whether Congress had a legitimate purpose in holding the hearing at which the seven-time Cy Young Award winner testified — and whether Clemens’ testimony was voluntary.
During questioning of one potential juror, Clemens’ attorney, Rusty Hardin, raised the issue of whether Clemens truly “voluntarily appeared” before Congress. Clemens was not subpoenaed to testify at the 2008 hearing, and the government has always maintained that he testified on his own will.
Clemens’ lawyers also filed a memo with the court arguing the government must show that the hearing was a “competent tribunal.” The memo listed a dozen “examples of congressional conduct that exceeds the power to investigate,” including “asking a witness to appear before a committee to give him an opportunity to tell his side of the story.”
“There’s going to be a challenge by the defense as to the propriety of the hearing … and the way it was conducted,” Hardin told one prospective juror.