The judge in the perjury trial of Roger Clemens, the former New York Yankees pitcher accused of lying to Congress by denying he used performance-enhancing drugs, said he is considering dismissing a fourth juror, who plans to travel to Germany on June 19.
U.S. District Judge Reggie Walton in Washington told lawyers for Clemens and the government today about the juror, who will be out of the country for six months. Walton previously dismissed three other jurors, leaving just one alternate.
“I’m concerned that if he starts to deliberate there may be pressure to return a decision,” Walton said.
Walton said he hadn’t decided yet whether to release the juror. If he does and one more juror drops out, a mistrial may be declared. Court rules allow juries of fewer than 12 if both sides and the judge agree.
The judge said the juror indicated he wouldn’t be able to delay the trip.
Rusty Hardin, a lawyer for Clemens, told Walton that the trial might be over before the juror’s June 19 departure date. He said the defense was on schedule to rest by the end of the week after the jury hears from Clemens’s wife, Debbie, and the estranged wife of Clemens’s accuser, Brian McNamee.
Walton said allowing the juror to deliberate “is very risky” given that jurors won’t get the case until June 11 at the earliest. The trial is scheduled to be recessed June 14 and 15 so Walton can travel to New Orleans for a conference.
Walton pointed out that jurors in the trial of former presidential candidate John Edwards deliberated for nine days.
“If that happens here, we’re in trouble,” he said.
Walton has raised concerns about another juror who he said may have been sleeping during portions of the trial. Two of the three jurors sent home earlier had been dozing during proceedings. The third juror was dismissed after her mother died.
“Usually, defense counsel will be very reluctant to consent to trial by less than 12, unless he or she is very confident about the jury going their way,” Michael Madigan, a criminal defense lawyer at Orrick, Herrington & Sutcliffe LLP in Washington, said in an interview.
Clemens, a seven-time Cy Young Award winner, is charged with one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury stemming from his testimony to the House panel. He faces as long as 21 months in prison if convicted.
Walton declared a mistrial during Clemens’s first trial in July after finding that prosecutors improperly showed the jury a video clip of a 2008 congressional hearing in which the wife of a government witness, Andy Pettitte, was discussed. Walton had ruled earlier that the government could make no references to Laura Pettitte or an affidavit she gave Congress.
Henry Asbill, a defense lawyer at Jones Day in Washington, said that Walton has the authority to allow a verdict with just 11 jurors over the objections of the government and defense, provided there are 12 jurors at the time deliberations begin.
Before seeking a mistrial, Hardin would assess whether the jury might acquit and whether the government would retry the case for a third time, Asbill said.
“Generally, criminal defense lawyers always take mistrials, particularly if their client can afford to retry the case,” he said.
The jury, which is sitting for its eighth week, consists of eight women and four men. The remaining alternate is a program analyst for the Nuclear Regulatory Commission who said during jury selection that he’d read about the case online after receiving his jury notice.
Walton has admonished both sides for taking too long to question witnesses. Walton’s own schedule has also delayed the proceedings.
Jurors falling asleep during testimony isn’t uncommon and “just a fact of trial life,” said Barry Boss, a partner at Cozen O’Connor in Washington.
“If the juror is going to fall asleep, I want it to be when the government is doing its direct, or, even better, when the government is crossing a defense witness,” he said. “But, in all likelihood, a juror who is so disengaged that he or she is falling asleep is unlikely to play a major role during jury deliberations.”
Today, the defense put on five witnesses, including a broadcaster for the Baltimore Orioles, a former masseuse for the Yankees, and two forensic experts.
Bruce Goldberger, a toxicology expert, was used by the defense to call into doubt the physical evidence the government has against Clemens.
That evidence includes a needle and cotton with Clemens’s DNA that tested positive for steroids. The material was given to prosecutors by McNamee, Clemens’s former trainer. McNamee told jurors that he gave the ballplayer injections of steroids and HGH during the 1998, 2000 and 2001 baseball seasons while both men worked for the Toronto Blue Jays and the Yankees.
McNamee said he saved needles, cotton and vials from one of the injections in 2001 and kept some of the items in a Miller Lite beer can that he took from the recycling bin in Clemens’s apartment. Some of that medical waste also contained material McNamee said he saved from an injection of human growth hormone by another ballplayer.
“I’ve never seen evidence like this being used by prosecutors to link a person to a drug,” Goldberger, a professor and director of toxicology at the University of Florida in Gainesville, said while testifying for the defense today.
Goldberger, who told jurors that he had been a consultant for the television show “CSI,” said the evidence was unreliable because drugs could have been transferred from the vial or syringe to the cotton balls while inside the beer can. He called the government’s conclusions “overreaching” in terms of interpreting the evidence.
Assistant U.S. Attorney Daniel Butler attempted to challenge Goldberger’s conclusions by pointing out that he never tested any of the evidence himself.
“There’s no test that I could run or that I could ask to be run to differentiate that this came from the defendant or was cross contamination,” Goldberger said.
Mike Boddicker, a former pitcher who played with Clemens on the Boston Red Sox, testified for the defense that he saw Clemens being injected with vitamin B12 in the clubhouse of Fenway Park in 1990. Boddicker’s testimony backs what Clemens’s told Congress in 2008 about receiving B12 injections.
The obstruction count contains 13 allegedly false or misleading statements that Clemens made to Congress in 2008. Some statements involved denials of drug use; others had to do with the frequency of B12 injections and whether Clemens attended a pool party at a teammate’s Florida home in 1998.
Clemens told Congress that, after ballgames, syringes filled with B12 were arrayed in locker rooms, ready to give to players who wanted them. He said that McNamee injected him with B12 and lidocaine.
The case is U.S. v. Clemens, 1:10-cr-00223, U.S. District Court, District of Columbia (Washington).