July 06, 2011

In a trial where Roger Clemens' believability will make all the difference, the manner in which jurors react to his voice and delivery of words could prove crucial. Earlier today, U.S. District Judge Reggie Walton heard arguments over whether audio of Clemens in private depositions should be available. Prior to Clemens testifying in a nationally televised hearing on February 13, 2008, he was deposed in private by the House Oversight Committee. According to Clemens' lawyer Rusty Hardin, the majority of Clemens' 15 allegedly false statements stem from the pre-hearing deposition and not the hearing that was televised. Clemens' defense team has audio and video of the televised hearing, but only a transcript of the pre-hearing deposition. Hardin insists that Clemens' tone of voice and demeanor are essential for the jury to fairly decide whether or not he was telling the truth.

William Pittard, an attorney from the Office of the General Counsel for the House of Representatives, argued that the written transcript is the official record of the deposition and that the audio is merely a backup for the court reporter to be able to correct any spelling errors or mistakes in the transcript. "The audio file is not the best evidence of what transpired," Pittard told Judge Walton. "The official House record is the best evidence ... there was only one microphone on the table [during the deposition]. In an official audio deposition you have lapel mics on all the people talking. There are quite likely instances on the audio tape where you can't discern what anybody is saying."

The House Oversight Committee has taken the position that the Speech or Debate Clause of the Constitution (Article 1, Section 6, Clause 1) exempts Congress from having to turn over the audio. The clause insulates members of Congress from lawsuits stemming from their legislative activities, including comments made during hearings. Here, the clause would be used to ensure that only the official House record reflects what was said. The audio is now in the possession of the House clerk, and according to Pittard, precedent going back to the 1800s is that the clerk may not release such materials unless a House resolution ordered it. "A House resolution is a substantial undertaking," Pittard said. "It can't be done at the last minute."

Hardin argued that it doesn't make sense that Congress would refer his client for prosecution for things he said and then not make available every record of what it is he said. Hardin later noted that "In the Barry Bonds trial ... they played the grand jury testimony" because that was at issue.

Unfortunately for Hardin, Judge Walton clearly did not think that Clemens's "inflection" when he gave the deposition would be important. Judge Walton also regarded Hardin's request as untimely. Hardin did not previously ask for the audio because he assumed it would be presented by the government.

On the other hand, Judge Walton became animated and raised his voice when discussing the idea that the government would not provide the audio, even though he did not think it would be important. Walton added that delaying the trial to try to get a House resolution would be "a tremendous waste of taxpayer money ... in a country going broke." His voice rose nearly to a mild yell when he said that "it does not look good for one branch of the government to refer prosecution to another branch and only produce part of the evidence." He also referred to Congress's use of the Speech or Debate clause as an attempt to "hide behind technicalities" and said that "I would think that Congress would not want our citizenry to say 'Does this system work? Is it fair?'" He eventually told Pittard to go back and ask for the audio again, but he does not seem inclined to delay the trial.

Should jurors not hear the audio and should Clemens ultimately be convicted, he could argue in an appeal that he was denied a fair trial at least in part because jurors did not hear the words that would ultimately doom him.

In other trial news, Judge Walton again heard debate on whether or not former players will be allowed to testify as to whether they received PEDs from Brian McNamee. Judge Walton said, "I still feel it's not appropriate to introduce testimony from other ballplayers who were getting steroids from Mr. McNamee for the purpose of showing they knew that Mr. Clemens was also getting steroids."

However, he said that he has considered the defense strategy, which appears to be to suggest that McNamee feared that he would lose his job because of allegations made against him as part of a rape investigation in Florida, and so he created evidence -- syringes tainted with drugs and presumably Clemens's DNA -- that Clemens was using steroids in an effort to blackmail him. If this is to be the defense strategy, Walton warned, then the government should be able to "undermine that suggestion" with testimony from players who admit that they knowingly received PEDs from McNamee and that he never attempted to bribe or blackmail other players by saying "you better keep paying me or I'll come out with this."

Later, Judge Walton raised a basic question about steroids and human growth hormone and whether possession in itself is a crime. "Can't I go to some of these health food stores and buy something that amounts to human growth hormone?" he asked.

Prosecutor Steven Durham explained that steroids are controlled substances legally available only with a prescription. And he added that, "Your Honor's concerned about whether I can go to CVS and buy [HGH], and the answer is absolutely not."

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