Although at first unconvinced that the information was anything but collateral to the case, Walton said he would look at the issue overnight. That brought to an end a day when he directed the two sides on numerous issues relating to the case, which is being retried after the first attempt at USA vs. William R. Clemens ended in mistrial last July when the prosecution showed inadmissible evidence to the jury.
Clemens, who won a record seven Cy Young Awards in his 24-year Major League career, is charged with one count of obstruction of Congress, three counts of making a false statement and two counts of perjury stemming from his February 2008 testimony and deposition before the House Committee on Oversight and Government Reform, during which he denied ever using performance-enhancing drugs.
McNamee, who had worked with Clemens since 1998, also appeared at that hearing and said there as well as in the Mitchell Report on performance-enhancing drugs in baseball that he injected Clemens on numerous occasions with steroids and human growth hormone.
Before the jury was sworn in, Walton indicated that the legitimacy of the hearing can be established in part through key government witness and Congressional staffer Phil Barnett, as the government argued. But he also ruled that portions of Yankees pitcher Andy Pettitte's story of his use of human growth hormone -- particularly the fact that he allegedly received the drugs from McNamee -- may not come into the trial, a position the defense argued would amount to guilt by association.
"I just don't see how the fact that Mr. McNamee at least on one of the occasions had allegedly given the HGH to Mr. Pettitte is somehow significant enough that it would outweigh the prejudice," Walton said, telling prosecutors he would revisit the subject if circumstances warranted it.
The jury panel is made up of 10 women and six men and includes Washington-area residents of many walks of life. There is a high-ranking official of the Treasury Department who himself has testified before Congress, a curatorial researcher for the Smithsonian Institute, a supermarket cashier, a retired elementary-school teacher, another teacher who works with the deaf and hard of hearing, an environmental lawyer and an unemployed 27-year-old who said he'd rather be sleeping than going through the jury-selection process but promised to stay wide awake during the trial.
Walton provided the jurors with general instructions in the morning and more detailed ones in the afternoon once they were sworn in on the case, saying there are now "17 judges in the courtroom" and that they must decide the case without "prejudice, fear, sympathy or favoritism." He reminded them of their responsibility to refrain from discussing the case with anyone or observing media accounts about the trial.
With that, Durham proceeded with his opening statement, which led with the famous Sir Walter Scott quote: "What a tangled web we weave when we practice to deceive." Pointing right at Clemens at one point, he said that's what the defendant, while a hero on the baseball field, chose to do when he testified under oath before Congress.
"Mr. Clemens had the opportunity once again to be a hero, not as a baseball player but as a man with the courage to tell the truth," Durham said, adding that Clemens' choice was to "tell lies."
He went on to describe Clemens' relationships with McNamee and Pettitte and take the jury through the timeline of events that led up to the 2008 hearing: from the first time McNamee allegedly injected Clemens with steroids in Toronto in 1998 to the conversation Pettitte said he claims Clemens admitted to using HGH and through to Clemens' denial to Pettitte in 2005 that he ever said such a thing. He discussed vitamin B12 and lidocaine, the substances Clemens said he thought McNamee was injecting him with over the years -- substances Durham pointed out only a physician can legally inject, substances that would have been available "on demand" from team medical staff if needed.
Durham also mentioned that McNamee kept a needle and cotton swabs that the government contends connect Clemens to PED use, although he did not mention as he did before the first trial that McNamee kept these items in a beer can for more than six years before turning them over to federal investigators in January 2008, the month before the hearings began.
The prosecutor said his office didn't "go out and pick a fight" with Clemens and that "Mr. Clemens' greatest adversary four years ago [before Congress] was Roger Clemens himself, a man who had weaved this tangled web of deceit and hurt."
Durham also said the defense would "save [the] sharpest knives" for McNamee. That became evident when -- after requesting his opening statement be presented in full Tuesday morning instead of starting Monday and being interrupted after only about 15 minutes -- Hardin leaped at the opportunity to bring in the mention of McNamee's sex charges in Florida, charges that were not pursued by authorities there. Hardin said Durham opened the door to bring in the details of the case by saying Clemens and Pettitte continued to employ McNamee after he'd been dismissed by the Yankees. The defense is already allowed to say that McNamee lied to police in Florida, but not allowed to say what it was about.
"The reason they did [retain McNamee] was that McNamee lied to them," said Hardin, who noted that a Yankees official will testify that he was asked by McNamee to dispose of a cup that included a date-rape drug at that time. "He was naked in a pool and trying to have sex with this woman, and he told them he was trying to help her out of the pool."
In addition to setting the parameters of the testimony of Barnett and Pettitte, Walton also listened to several arguments over line-by-line issues between the two sides about portions of the deposition in which Barnett and others interviewed Clemens on Feb. 8, 2008. Ultimately, he said those issues can be taken care during Barnett's testimony.
"I think y'all are making it too difficult. You're going to confuse the jury," Walton said.
The judge suggested the government can just ask Barnett what he told Clemens without introducing those portions of the transcript into evidence.
"Boom, move on," Walton said, then quickly bounced out of his chair and exited the courtroom for the day.