WASHINGTON -- As U.S. District Judge Reggie Walton and lawyers from both sides reviewed on Monday questions submitted by jurors for Roger Clemens' accuser Brian McNamee, they stumbled over one.
"Did you ever inject any other players with steroids or HGH?" a juror wanted to know.
The answer to that question -- that McNamee said he injected two other players and they admitted it -- has been kept out of Clemens' perjury trial by repeated, vigorous arguments from defense lawyers, concerned it could hurt their case.
Now a juror was asking that most sensitive of questions.
In the secret bench conference Walton held to decide which juror questions to ask, Clemens' lawyer, Rusty Hardin, objected to that one, according to a transcript of the proceedings that Newsday acquired.
"That just proves what we've been saying," he said, "that they've jumped to the conclusion that he injected other players, which is the very thing we were trying to avoid: guilt by association."
Such things can happen when jurors are allowed to take part as more than spectators. Walton is one of a few federal judges who allow jurors to take notes during testimony and ask questions of witnesses after the prosecution and defense have finished with them.
Jurors write questions on 3-by-5 cards, and Walton and the lawyers screen them. He then asks the questions he deems pertinent.
Walton said his policy keeps jurors engaged, a difficult task: He has dismissed two jurors during this trial for sleeping. He said it also gives the lawyers a glimpse into the jury's thinking.
What jurors wanted to ask McNamee shows they still have questions about evidence, such as whether McNamee wore gloves to give injections (he said no) and why he kept syringes (his wife made him do it).
The questions also show jurors are still evaluating McNamee's motive, asking whether a steroid dealer paid him for referrals (he said no) and whether he personally used steroids (he said yes).
Walton asked McNamee 27 of the 29 questions, the most the jury has asked in the trial. One of the excluded questions, about the injections, boosts the government's case.
But Walton barred him from saying he "injected" them because it parallels McNamee's assertion that he injected Clemens.
In the conference, Assistant U.S. Attorney Daniel Butler lobbied for asking the query.
"Your honor, can I just ask . . . the question about whether Mr. McNamee injected any other players is one of the proposed questions there?" he said. "I don't want the jury left with a false impression that McNamee didn't inject anybody else."
Hardin retorted: "Wait a minute. That's the whole thing we've been fighting about, is this whole thing of injection."
Walton didn't ask it.
He excluded one other juror question to McNamee: "Why should we believe you when you have shown so many inconsistencies in your testimonies?"
Walton said, "I won't ask that. That's for them to decide."