During the discussions, one of the 13 remaining acts that make up the obstruction of Congress charge remained at issue. Act 15, the one relating to whether Clemens was at Jose Canseco's house June 8-10, 1998, is being considered by Walton again for its materiality to the case, not for whether Clemens might have been misleading the Congressional investigation with his statements.
Earlier, attorney Rusty Hardin said at 11:20 a.m. ET Monday that the defense rested its case, and Clemens made his first comments in court during these proceedings, out of the presence of the jury.
Asked by Walton whether he understood that he had the opportunity to testify on his own behalf, Clemens approached the podium in the middle of the courtroom, leaned down and spoke into the microphone.
"Yes, sir. I am not testifying," Clemens said.
Asked if he had discussed that with his attorneys, Clemens said, "Yes, judge, I sure have." Asked again if he was not going to testify, Clemens responded, "That is correct, sir."
Clemens, who won a record seven Cy Young Awards in a 24-year Major League career, is charged with three counts of making false statements, two counts of perjury and one count of obstruction for telling a congressional committee in 2008 that he never used steroids or human growth hormone, also making other statements the government says were misleading to the investigation.
Brian McNamee, Clemens' strength and conditioning trainer for the better part of a decade, testified before the same congressional committee and at this trial that he injected Clemens with performance-enhancing drugs numerous times from 1998-2001, saving evidence in a Miller Lite beer can and a FedEx box after injecting Clemens in August 2001. Clemens testified that McNamee only injected him with vitamin B12 and lidocaine.
Jerry Laveroni, the Yankees' director of team security from 2000-09, was the final defense witness, but certainly not the first to be called to attack McNamee's credibility.
Laveroni, a former stuntman and undercover narcotics officer, said he worked with McNamee "every day" from the latter's arrival with the Yankees in 2000 as assistant strength and conditioning coach up to his dismissal from the Yankees following the 2001 season. Laveroni made it clear that he came away from the experience with no level of confidence that anything McNamee says is true.
"Do you have an opinion as to whether Brian McNamee is entitled to be believed under oath?" Hardin asked.
"No, I don't think he can be believed under oath," Laveroni said.
"Your opinion as to his credibility is what?" Hardin asked a moment later.
"Zero," Laveroni said.
Much of the morning was spent with lawyers arguing outside the jurors' presence about what Laveroni could and could not say regarding two incidents in October 2001. One is an incident in St. Petersburg, Fla., which the jury only understands to be a serious legal matter in which McNamee was not truthful to criminal investigators; Laveroni would have said that McNamee asked him to destroy evidence, namely a container that had GHB, the date-rape drug, in it. The other is an incident in Seattle in which McNamee was incoherent in a hotel bar and placed in an ambulance, and Laveroni and others took McNamee to his hotel room; Laveroni would have testified that he believed McNamee was on drugs, not suffering from hypoglycemia as McNamee testified he was.
After Laveroni was allowed to say very little about those incidents, the government then had to tread lightly on cross-examination to avoid opening doors to further testimony about them. Assistant U.S. Attorney Daniel Butler spent only a couple of minutes questioning Laveroni, mainly establishing that Laveroni only worked with McNamee for two seasons 11 years ago, and that McNamee continued to work with Clemens into the 2007 season.
Stipulations and agreements the two sides have made as to facts relating to the case then were made to the jury, including that Clemens did not fail any drug tests for steroids from 2003-07 and that Major League Baseball did not test for HGH at the time.
During the rebuttal case, the government called Federal Bureau of Investigation forensic toxicologist Cynthia Lynn Morris-Kukoski, who said Dr. David Goldberg overreached when he said the government's conclusions about Clemens' DNA found on items kept by McNamee were "overreaching"; Dr. Ed Blake, who defended in sometimes testy cross-examination the DNA results brought forth by Dr. Alan Keel of their firm Forensic Science Associates laboratory, saying it is "implicit" based on basic logic in two reports they submitted that the DNA found on a needle likely belonged to Clemens and therefore did not belong to McNamee; and FBI agent John Longmire returned to the stand a third time, testifying that Eileen McNamee told him in a May 2011 interview that there were two beer cans she saw in a master bedroom closet, one next to the infamous FedEx box and one inside it.
The main issue hanging in the balance is the obstructive act, and how the obstruction charge will be handled on the jury form.
The government charges in the obstructive act regarding the Canseco party that Clemens said he was not at Canseco's house during that timeframe, and testimony during trial -- including Debbie Clemens saying that the Clemens family stayed overnight at the Canseco house the night before the party -- made it clear that he was. However, the issue is whether that is material to the case, with the government saying Congress considered it material to its investigation, and McNamee saying it was part of his timeline of when he says he first injected Clemens with steroids several days later.
"I don't think there's any way any reasonable juror could conclude that this was a material event," Hardin told Walton, who said he would confer with his judicial colleagues over the issue.
The jury needs to unanimously agree on just one of the 13 acts in the obstruction charge to cause a conviction. After considerable debate, Walton ruled that the jury will only have to indicate whether there was a guilty or not guilty finding on the entire charge, not detail which of the acts were not unanimous if there is no conviction. They will have to detail which act or acts they concluded were obstruction if they make a finding of guilty, however.
Walton also told attorneys that he will move a juror to the one alternate spot because the juror has to travel to Germany on June 19, and he doesn't want that juror to feel pressure to come up with a verdict before then. If the jury does not come back with verdicts after presumably part of Tuesday and all of Wednesday to deliberate, the deliberations will be suspended until next Monday -- a break originally set up because Walton has a commitment in New Orleans, and then solidified when jurors made plans for those days as well.
Monday was the 32nd day of the trial and marked the start of the ninth week of proceedings since jury selection began April 16. Laveroni was the 21st defense witness to be called to the stand, although the defense also recalled two of the 24 witnesses called by the prosecution. Two of the three rebuttal witnesses the government called were part of its case in chief, so in total there were 46 people who took the witness stand in the trial.