The attorney for Roger Clemens gave his strongest hint yet that the former baseball star may not testify in his trial on charges of lying to Congress about using performance-enhancing drugs as he pressed potential jurors not to hold Clemens' silence against him.
Several members of the jury pool under selection in Washington federal court said they would weigh evidence from both sides before deciding on a verdict. The judge and Clemens' attorney had to repeatedly explain the legal principle of innocent until proven guilty and that prosecutors alone bear the burden of proving his guilt.
It's a common issue in criminal cases, but the comments from Clemens' attorney Rusty Hardin show the defence team is at least considering not putting the ex-pitcher on the stand.
"Maybe you won't get both sides," Hardin told a government consultant who indicated she wanted to hear Clemens prove his innocence. She eventually said she understood she must start off by assuming he's innocent until the government persuades her otherwise.
"Would you require him to testify to find him not guilty?" Hardin asked another panelist.
"I would like to hear from both sides," she responded.
"That's the point. Most people would," Hardin said, and then explained she can't hold it against him.
"You mean you aren't going to say anything at all?" she asked.
"We may, we may not," he said. Under coaching from Hardin, she eventually said she would find him not guilty if she had a reasonable doubt even without hearing from him.
A retiree was dismissed after he said he said he would suspect Clemens was guilty if he chose not to testify. "I would kind of feel like what the government says might be true," the man said. U.S. District Judge Reggie Walton responded, "You can't do that." But the man said he couldn't be sure he wouldn't hold it against Clemens.
Clemens watched without speaking during three days of intense questioning of 50 potential jurors that qualified 35 people for potential service. Fifteen were turned away for reasons including medical issues, an inability to commit to a trial expected to last into August and biases against either Clemens or Congress for even investigating drugs in baseball.
Walton plans to have prosecutors and defence attorneys exercise their preemptory, or unexplained, challenges Tuesday afternoon to narrow those qualified to a panel of 12 jurors and up to four alternates and then have opening arguments Wednesday.
Clemens is charged with six felonies for telling Congress under oath that he never used performance-enhancing drugs. He stands by the denial, but prosecutors say they can prove that is a lie.
One woman who made it through to the next round is a former attorney turned yoga instructor who said she saw some of Clemens' congressional testimony and thought "he seemed sincere." The judge asked her, "Have you ever heard about performance enhancing drugs in yoga?" She said no, "we tend to be vegetarians." But she thinks that some drugs should be legal and U.S. drug laws "are a bit heavy-handed."
Another potential juror, a lawyer for the Federal Communications Commission, said she does not watch sports on television and doesn't even know how to turn on the TV at home. She said her husband told her it looked like she was being called for the Clemens jury and she got him confused with all-star Pittsburgh Pirates right fielder Roberto Clemente, who she apparently didn't realize died in 1972.
But there was one baseball fan in the group who was very familiar with Clemens and said he'd been following him since he helped lead the University of Texas Longhorns to victory in the College World Series in 1983. "He was a heck of a ballplayer," said the man, a former IRS database programmer. But he said he has no opinion on his guilt or innocence.