Prosecutors and the judge in Roger Clemens' retrial are finding potential jurors who view the congressional hearings where he allegedly lied as a waste of money, which could pose a serious hurdle to convicting the famed baseball pitcher of perjury about whether he used drugs.
Two of those prospective jurors have already survived the first cut in choosing the panel, and on Tuesday another one also did so, even though he said didn't know if it was appropriate for Congress to investigate performance-enhancing drugs in sports.
Wearing a dark suit and red tie, Clemens, once an overpowering right-handed pitcher, was back at the defense table jotting notes with his right hand and occasionally flipping through pages with his left.
The seven-time Cy Young Award winner is facing the government's second attempt to prove that he misled a House committee at a landmark drugs-and-sports hearing in 2008. The first trial last July ended in a mistrial when prosecutors introduced inadmissible evidence after only two witnesses had been called.
The man who questioned the congressional investigation Tuesday, a graphic designer, also said he believed that baseball's career home run leader Barry Bonds took performance-enhancing drugs. Bonds was found guilty last year on just one count of obstruction of justice, for giving an evasive answer to a grand jury when asked about drug use.
The juror said Bonds should have been forthcoming about drug use: "It was as simple as stepping up to the plate and being a man about it." He added that he never thought of Bonds as a man of integrity.
Asked by Clemens lawyer Rusty Hardin if he had similar feelings about Clemens, he responded that he viewed Clemens in a different way. Hardin called him an "ambivalent juror" and asked the judge to strike him. But U.S. District Judge Reggie Walton declined.
The judge said disqualification might be justified if the man were being asked to serve on a jury for Bonds, but not in this case. Hardin will still have an opportunity to strike him later in the process, but he'd have to use one of his 12 unexplained strikes.
Also Tuesday, a man who admitted to being arrested "quite a few times" on misdemeanors was approved to return for the next stage of selection. The man, who said he was in his early 60s and "semiretired," at first said he didn't think it should be a crime for a man to lie only about himself before Congress. But when a prosecutor asked if the person's lies affected an investigation that could affect the health of children, he said that should be a crime.
Another potential juror was qualified for the next stage although he said it appeared Attorney General Eric Holder was not giving complete information to congressional investigators looking into the federal government's flawed gun-smuggling investigation in the Phoenix-area known as Operation Fast and Furious.
One was excused after he said he didn't believe Clemens took steroids.
On Monday, one potential juror said he felt "it was a little bit ridiculous" when Congress held hearings on drug use in sports because he felt the government should have been focusing on bigger problems. Asked whether he thought it was wasteful for Congress to hold the steroid hearings, he responded, "Yes."
Nevertheless, the native of Chile — an investment officer for an international bank — was asked to return, the only male to remain in the jury pool among those who were individually screened on the first day. He said he could keep the issue of whether Clemens lied separate from whether Congress should have had the hearings in the first place, saying, "This is a completely different process."
Another potential juror recalled the 2008 hearing by saying, "At the time, I remember thinking it didn't seem to be a great use of taxpayer money." But she, too, was kept in the pool after she said she could be impartial.
"Even if I don't agree with the reason that you're brought before Congress, you still have to tell the truth. … If you perjure yourself before Congress, it's still illegal," said the woman, who is an executive for an environmental nonprofit organization. The woman said her father played minor league baseball.
But another potential juror was excused after she volunteered, "I don't know if that's the best use of government tax dollars at this time." She said her feelings could influence her ability to serve.
Another was excused when she said Congress spent "too much time" on the investigation.
Clemens lawyer Rusty Hardin even hinted that the defense might challenge Congress' authority to call the hearing in the first place, but Walton was skeptical of that line of questioning. The judge reminded lawyers again that some of the jurors from the first trial felt a retrial would be a waste of taxpayer money. He said that one of the hurdles in the case is that some people think "we have some significant problems in this country that are not being addressed by this Congress."
By the end of the first day, only 13 potential jurors had been screened and just seven had been asked to return Wednesday for more questioning.
Hardin asked several of the potential jurors if they could conceive of a situation in which somebody says something under oath that he believed to be true, which turns out not to be, without telling an intentional lie -- raising the possibility that could be part of Clemens' defense.
Clemens faces a maximum sentence of up to 30 years in prison and a $1.5 million fine if convicted on all six charges. Maximum penalties are unlikely because Clemens doesn't have a criminal record, but Walton made plain at the first trial that Clemens was at risk of going to jail. Under U.S. sentencing guidelines, he probably would face up to 15 months to 21 months in prison.