Law
6:26 pm
Wed May 2, 2012

Key Clemens Witness Leaves Prosecutors Scrambling

Originally published on Wed May 9, 2012 10:44 am

The prosecution at the perjury trial of baseball great Roger Clemens suffered another major setback Wednesday. One of its key witnesses, pitcher Andy Pettitte, conceded that he may have misunderstood his former teammate as saying he used human growth hormone (HGH).

Clemens is charged with lying to Congress when he testified before a House committee that he had never used performance-enhancing drugs.

The core of evidence against Clemens is expected to come from his one-time trainer, Brian McNamee, who changed his story and implicated Clemens after being granted immunity from prosecution. McNamee also gave prosecutors needles and cotton swabs, which he said he'd kept for two years, bearing traces of steroids, HGH and Clemens' DNA.

But McNamee has credibility problems. Among other things, he was fired by the New York Yankees after he became the focus of an investigation in Florida involving a date rape drug. No charges were ever brought.

Because of questions about McNamee's credibility, the prosecution clearly viewed Pettitte as a crucial corroborative witness. Not only was he Clemens' longtime friend and mentee, he previously said that Clemens had told him, during a workout session 12 or 13 years ago, that he used HGH.

'Could Have' Misunderstood

Under cross-examination on Wednesday, however, Pettitte acknowledged a fairly high degree of uncertainty about exactly what Clemens told him. In one crucial exchange, defense lawyer Michael Attanasio asked Pettitte whether he believes now, in his own mind, that he might have misunderstood Clemens. "I could have," Pettitte replied.

"Do you believe it's 50-50?" asked the defense lawyer.

"I think that's fair," Pettitte replied.

By the end of the cross-examination, Pettitte was referring to the disputed conversation as one he "thought" he'd had with Clemens.

The prosecution tried to salvage its shredded witness but elicited nothing really helpful. Then the defense asked the presiding judge, Reggie Walton, to strike Pettitte's testimony as "insufficiently definitive," meaning that it was too uncertain to prove anything.

Walton seemed to be edging in that direction, saying of Pettitte, "he's conflicted. He doesn't know what Mr. Clemens said."

The judge asked the lawyers to file briefs on the issue but noted that all the precedents he had found indicate that evidence cannot be admitted unless it is more likely than not to be true.

If that is indeed the standard, it could well be that a conversation that has only a 50-50 chance of being true may not meet the threshold for admissibility, in which case the judge would instruct the jury to disregard Pettitte's testimony entirely.

Other Testimony Barred

The Pettitte testimony was not the only setback for the prosecution. The next witness up was supposed to be Steve Fehr, general counsel for the baseball players' union. The government wanted Fehr to testify about his conversations with Clemens' agent/lawyer. But the judge barred that testimony, telling the prosecution that it would be a backdoor way of violating attorney-client privilege.

"You all are taking a position that is totally absurd," the judge said. "I'd be reversed in a heartbeat if I let this in."

Having lost the battle on the point, the prosecution decided not to call Fehr at all, after keeping him waiting for two days.

The prosecution's performance so far has raised eyebrows, but the trial is still in its early stages. Yet to come is trainer McNamee's testimony and the physical evidence that he turned over to investigators.

Late Wednesday, the prosecution called Jeff Novitzky, a special agent with the Food and Drug Administration, who will provide an overview of the investigation for the jury.

Wasting Time?

After a mistrial last year, the prosecution more than doubled its resources in terms of lawyers and FBI agents just in the courtroom. But so far, the prosecution's questioning appears unfocused, repetitive and meandering. Prosecution objections are frequent during the defense cross-examination, while defense objections are relatively rare.

The pace of the trial is maddeningly slow to most observers in the courtroom. The judge calls the lawyers up for sometimes lengthy bench conferences on almost every objection, and as Walton observed at the end of Wednesday morning's session, the jury is going "crazy" at all the wasted time.

The jurors have clearly communicated their displeasure. That is never good for the prosecution in a case like this, where critics have questioned whether this is a good use of the taxpayers' money.

On Wednesday, questions about the case were raised with Attorney General Eric Holder. He defended the decision to prosecute Clemens as a "justified use" of government resources.

Copyright 2012 National Public Radio. To see more, visit http://www.npr.org/.

Transcript

AUDIE CORNISH, HOST:

It's ALL THINGS CONSIDERED from NPR News. I'm Audie Cornish.

ROBERT SIEGEL, HOST:

And I'm Robert Siegel. It was another bad day for the prosecution at the Roger Clemens perjury trial. The seven-time Cy Young Award-winning baseball pitcher is charged with lying to Congress when he testified that he had never used performance-enhancing drugs. But today, one of the prosecution's key witnesses revealed some uncertainty. Another big league pitcher, Andy Pettitte, who's now come out of retirement, conceded that he may have misunderstood his former teammate about whether he used human growth hormone.

NPR legal affairs correspondent Nina Totenberg was at the courthouse and joins us now. And, Nina, Pettitte had been considered a vital witness for the prosecution. It now sounds as though his testimony has collapsed.

NINA TOTENBERG, BYLINE: You got it. Remember that Pettitte is a key witness because he said that Clemens once told him during a workout session 12 or 13 years ago that he had used HGH. But today, under cross-examination, he acknowledged a fairly high degree of uncertainty. Defense lawyer Michael Attanasio asked him: Do you believe, in your own mind, that you might have misunderstood? Answer: I could have. Question: Do you believe it's 50-50? Answer: I think that's fair.

And by the end of the cross-examination, Pettitte was referring to the conversation as one that he thought he had with Clemens. The prosecution then tried to salvage its shredded witness but elicited nothing really helpful. And then the defense asked the presiding judge to strike all of Pettitte's testimony as insufficiently definitive.

SIEGEL: That would be a very dramatic turn of events. Any indication of whether the judge might actually do that?

TOTENBERG: Well, Judge Reggie Walton seemed to be edging in that direction. He said of Pettitte: He's conflicted. He doesn't know what Mr. Clemens said.

SIEGEL: Well, why would he do that? I mean, if there was a problem revealed in the testimony on the witness stand, why would the judge go so far as to tell the jury to disregard it?

TOTENBERG: Well, the judge is asking for briefing on the point, but he noted that all the precedents that he had found indicate that evidence can't be admitted unless it's basically more likely than not to be true. And if Pettitte now says that the chances of him having misunderstood Clemens in that one conversation are 50-50, that does not appear to meet that threshold.

SIEGEL: Now, as I understand it, the cross-examination of Andy Pettitte was not the only setback for the government today.

TOTENBERG: Hardly. The next witness up was supposed to be Steven Fehr, who's the general counsel for the baseball players' union, and the government wanted Fehr to testify about his conversations with Clemens' agent/lawyer. But the judge barred that testimony, telling the prosecution that it would be essentially a backdoor way of violating attorney-client privilege. You all are taking a position that's totally absurd, said the judge. I'd be reversed in a heartbeat if I let this in. And having lost the battle on that point, the prosecution decided not to call Fehr at all, having kept him waiting for two days.

SIEGEL: Nina, I realize this is still a trial in the very early stages, but, to put it mildly, it sounds like it hasn't gone very well for the prosecution.

TOTENBERG: Well, we have to say there still is physical evidence implicating Clemens, and testimony from his onetime trainer Brian McNamee, but McNamee has credibility problems as we've discussed. And that's why Pettitte was so crucial. In addition, I have to say that the prosecution's performance is really odd. After the mistrial last year, the prosecution more than doubled its resources in terms of lawyers, FBI agents, just in the courtroom. But the questioning takes forever, it's incredibly repetitive and meandering.

The prosecutor objects all the time during the cross-examination. The defense objections are far fewer. The judge calls the lawyers up to the bench for conferences on almost every objection. And as the judge observed at the end of this morning's session, the jury is going crazy at all the wasted time. And that is never good for the prosecution in a case like this where critics have questioned whether this is a good use of the taxpayers' money.

SIEGEL: OK. Thanks, Nina.

TOTENBERG: Thank you.

SIEGEL: That's NPR's Nina Totenberg. Transcript provided by NPR, Copyright National Public Radio.