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.
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