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Clemens Retrial: Throwing Out the First Pitch

This week saw Opening Day at Yankee Stadium, an annual rite of spring. Jorge Posada threw out the ceremonial first pitch. Meanwhile, in D.C. Posada’s former battery mate, Roger Clemens, saw the start of his retrial on charges of lying to Congress. Clemens was the master of the fastball, an intimidator on the mound. A different sort of pitch was being thrown in this arena this week. Lawyers on both sides were engaged in jury selection.

The purpose of this process is to weed out those with preconceived opinions who could not promise to keep an open mind and judge the evidence in an impartial fashion. Lawyers have agendas in jury selection. In our state we are privileged to have the only individual voir dire system in the country. Despite constant challenges by the advocates for judicial expediency, this right has been guaranteed by our state constitution. Here lawyers, and not the judge, have the right to conduct individual questioning of prospective jurors. In the federal court, where Clemens is being tried, the opportunity for individual questioning is substantially limited.

In every jurisdiction lawyers jockey for the opportunity to plant the seeds of their trial themes in the voir dire process. The rules of jury selection are clear, we cannot posit hypotheticals that mirror the potential evidence in a case and then ask prospective jurors how they would react. The line appears clear in our caselaw; however, there is a constant friction between defense lawyers and the presiding judge to move that line.

For example, if the George Zimmerman case was being tried in a Connecticut court defense lawyers would want to know how a juror felt about the concept of using deadly force in self-defense, the core issue in that case. Such questions have to be phrased in a broad, conceptual sense, rather than specifically focused on the facts of that case. An example of an acceptable question is, “Do you have any religious or philosophical objections to the use of force to defend yourself?” The question that crosses the line would be, “If you were approached at night by someone wearing a hoodie, and felt threatened, do you feel you have the right to shoot that person?” One question addresses the concept, while the offending question gets to the facts at hand and tries to elicit an opinion in advance.

At Clemens’ trial his attorney, Rusty Hardin, threw out the first ceremonial “pitch.” He demonstrated the art of asking the focused question without crossing the line into fact-specific hypotheticals, when he inquired if several of the jurors could conceive of a situation where a witness says something under oath that he believes to be true which later turns out not to be, without being accused of intentionally lying.

What Hardin did, in a not so subtle fashion, was tell those jurors that Clemens said something under oath that turned out to be untrue, but when he said it he believed it to be true. He is taking the reality of the anticipated evidence and turning a disadvantage to a defense-“I didn’t really mean to lie.”

Responses from some of the potential venire persons were also telling. A number of them were skeptical of Congress wasting time in hearings into drug use in baseball while there are so many more important issues that should be taking their time. It remains to be seen whether Hardin’s “pitch” combined with an undercurrent of thought that the hearings were superfluous will carry the day for the Rocket this time around. It’s just the first inning, get your popcorn and beer and settle in for a long game.

Let me know what you think. Post your comments below or send me a Tweet @RichMeehan on Twitter.

Rich Meehan