WASHINGTON -- Prosecutors face a headwind in the Roger Clemens perjury trial that resumes Monday: a sense expressed by some jurors that the government has better things to do than to go after a retired baseball pitcher for alleged steroid use.
That sentiment is being fanned by defense attorney Rusty Hardin, who in his opening statement last week not only questioned the hearing that got Clemens into trouble, but also appealed to skepticism of the federal government.
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"God help me if we have reached the stage in this country where we're going to make a federal case out of denying you committed a crime," Hardin told the jury.
As the trial enters its third week Monday, both sides will focus on the legitimacy of the Feb. 13, 2008, hearing in which Clemens' denial of steroid use led to his six-count indictment on charges he lied to Congress.
Hardin and Assistant U.S. Attorney Steven Durham are competing to win over the panel of jurors, most of whom have said they don't follow baseball, don't know about Clemens and don't have an opinion on whether hearings should have been held. Two jurors and an alternate, however, openly questioned the decision by Congress to take on baseball's steroid mess, and their views could influence the jury's final deliberations.
"I'm not sure that Congress should be the proper authority to do it," said one juror, a retired association manager.
Another, a curatorial researcher at the Smithsonian, recalled the hearings and said, "I had the feeling at the time, 'Really, is this what they should be spending time on?' "
The alternate, a bioengineer, said the hearings "seemed excessive" for a Congress with "more important things to do" and "resource constraints."
He added he thought congressional hearings "would be for something that affected more people."
Hardin's tactic might be effective, legal experts said, especially given Americans' low approval ratings for Congress, as shown in three recent polls.
"I do see this as an issue for at least some of the jurors, given that this is the second attempt at trying Clemens," said Mark Conrad, a Fordham law and ethics professor. "The government's case is a tough one," he said, "and bringing this question up, subtly, can be an effective tactic."
Peter Keane, dean emeritus at Golden Gate University Law School in San Francisco, said all defense lawyers argue the government is overreaching. But he criticized Hardin's opening statement, saying the Texas lawyer might have gone too far in making arguments, rather than just outlining evidence as court rules require.
Regardless, Keane said, "The government's best strategy is to not even respond to it because if you do, then you sort of emphasize it."
Durham will resume questioning on Monday of the committee's former chief of staff, Phil Barnett, to establish that Congress not only had authority to hold the hearing but also had a public purpose: protecting children from using steroids when they try to emulate baseball stars.
In his cross-examination of Barnett, Hardin is expected to question whether Congress can legitimately air a dispute between two people -- in this case Clemens and his former trainer and chief accuser, Brian McNamee of Long Beach.
Durham and Hardin are also expected to clash this week over whether Clemens appeared before the House committee voluntarily or under the threat of a subpoena. In his opening last week, Hardin subtly sought to drive a wedge between jurors and Durham.
Hardin reminded jurors that Durham, in his opening, said that Clemens "came to our city and he lied to our Congress."
Then Hardin said, "Let me tell you something: It is not Mr. Durham's Congress. It's all of our Congress."