Former Major League Baseball pitcher Roger Clemens leaves federal court in Washington, Tuesday, April 24, 2012. Clemens' lawyer opened his defense of the former pitching star by telling jurors that evidence purportedly showing Clemens used steroids was manipulated by his former strength coach, Brian McNamee. (AP Photo/Manuel Balce Ceneta)
After stumbling its way to a mistrial of Clemens last year, the government is struggling again in the retrial — to the point that the crux of Pettitte's testimony might be tossed out. First, the exasperated judge criticized the questioning of Pettitte on Wednesday, then he ruled against prosecutors in another matter. Finally he cried out: "You're taking positions that are totally absurd to me."
Pettitte, Clemens' longtime friend and former teammate, was on the stand for a second day in the trial that is to determine whether Clemens lied at a 2008 congressional deposition and hearing when he denied taking steroids and human growth hormone.
During cross-examination, Clemens' lawyers got exactly the answers they wanted.
Might Pettitte have misunderstood when Clemens supposedly acknowledged using human growth hormone to Pettitte in a conversation during the 1999-2000 offseason?
"I could have," Pettitte answered.
Is it fair to say there is a "50-50" chance that Pettitte misunderstood?
"I'd say that's fair," Pettitte replied.
The government tried to salvage their witness, but prosecutor Steven Durham's follow-up questions were lacking — at least in the minds of Clemens' lawyers and, more importantly, U.S. District Judge Reggie Walton. Clemens' lawyers moved to strike Pettitte's testimony about the 1999-2000 conversation as "insufficiently definitive."
The judge seemed to agree, openly wondering why Pettitte wasn't asked for a current, definitive recollection of the conversation. He repeatedly berated Durham, who was also part of the government team last July when prosecutors showed the jury a snippet of inadmissible videotaped evidence, prompting the mistrial.
"I was waiting for you to ask, and you didn't ask that," Walton said.
"My understanding is that (Pettitte's) position is at this time, he is conflicted. ... His testimony now before the jury is 'I don't know,'" the judge continued. "I thought that what we would hear is, 'Mr. Pettitte, currently, what is your memory of what Mr. Clemens told you back in 1999?'"
In other words, the jury might have concluded that maybe Pettitte did "misremember" the conversation, as Clemens has claimed.
Durham tried to contend that he addressed the matter in a different way. The defense will file a brief in support of its position, and Walton could rule on Pettitte's testimony as early as Thursday.
During his first day on the stand Tuesday, Pettitte recalled the crucial conversation, which took place at Clemens' home during a workout, as: "Roger had mentioned to me that he had taken HGH." Pettitte's testimony — as a reluctant witness with no ulterior motive — is considered vital for the prosecution's case, which otherwise relies heavily on Brian McNamee, a former strength coach for both Pettitte and Clemens who says he injected Clemens with steroids and human growth hormone.
After his testimony, Pettitte signed a baseball in the hallway and left the courthouse in a black SUV without commenting, free to continue his comeback with the New York Yankees.
Inside, the government's woes continued. Its next witness wasn't even allowed to take the stand.
Prosecutors had planned to call Steve Fehr, an attorney for the Major League Baseball players' union. Fehr was supposed to help show, in an indirect manner, that Clemens was aware that former Sen. George Mitchell had tried to contact Clemens when putting together the 2007 Mitchell Report on drug use in baseball. Clemens was named in the report, prompting Congress to call the February 2008 hearing at which Clemens testified.
Walton said he didn't understand what Fehr's testimony would accomplish and that it could amount to "trampling on the attorney-client privilege" because it relies on Fehr's conversations with Clemens' lawyers. Walton said the government should use other evidence to show that Clemens was aware of the Mitchell request.
"Maybe I'm dense," Walton said, his voice rising. "I'm starting to think that maybe I just don't understand the law — because you're taking positions that are totally absurd to me."
The government kept trying to argue its case, but Walton would have none of it.
"You're beating a dead horse, and you've not going to make it come alive," Walton said. "You're not going to win this one."
Nevertheless, Walton said he would allow the government to do some research and file a brief before making a final decision.
In another behind-the-scenes move, McNamee filed a motion to quash a subpoena served by the defense on his ex-wife for records from their contentious divorce proceedings two years ago. The defense wants the records about McNamee's past to attack his credibility. There was no indication when the judge would rule on McNamee's request.
Clemens and Pettitte arrived at opposite ends of the courthouse a few minutes apart Wednesday morning, both in gray suits. Pettitte carried a backpack and a bottle of water.
During breaks when the judge and lawyers haggled over legal procedures, Pettitte looked down or straight ahead, never in Clemens' direction. Clearly uneasy over testifying about his friend, he looked as if he couldn't wait for it all to end.
Pettitte's hedging on the conversation shouldn't have come as a complete surprise to prosecutors. Back in his 2008 deposition, he mentioned a few times he might have misunderstood Clemens. At one point, under prodding from a congressional investigator, Pettitte said, "I don't think I misunderstood him," but even then added, "six years later when he told me that I did misunderstand him, you know, since '05 to this day, you know, I kind of felt that I might have misunderstood him."
The trial of former star pitcher Roger Clemens on charges that he lied to Congress when he denied taking steroids and human growth hormone is just the latest example of a big name from baseball becoming embroiled in scandal.
With Clemens' friend Andy Pettitte retaking the stand Wednesday, this is a look at some of the other cases in which the sport's major figures got into hot water.
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March 12, 1921 — Accused of throwing the 1919 World Series, Chicago White Sox pitchers Eddie Cicotte and Claude "Lefty" Williams, first baseman Chick Gandil, shortstop Charles "Swede" Risberg, third baseman Buck Weaver, outfielders "Shoeless" Joe Jackson and Happy Felsh and infielder Fred McMullen were suspended for life by Commissioner Kenesaw Mountain Landis. The players had already been suspended by the team on Sept. 28, 1920, following their indictment on criminal charges.
The "Black Sox" were acquitted on Aug. 3, 1921, but banned from the game by Landis the following day.
"Regardless of the verdict of juries, no player who throws a ballgame, no player that entertains proposals or promises to throw a game, no player that sits in conference with a bunch of crooked players and gamblers where the ways and means of throwing games are discussed and does not promptly tell his club about it, will ever play professional baseball," Landis wrote.
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April 9, 1947 — Brooklyn Dodgers manager Leo Durocher was suspended for one year by Commissioner Albert B. "Happy" Chandler "as a result of the accumulation of unpleasant incidents in which he has been involved which the commissioner construes as detrimental to baseball."
Chandler refused to say if the incidents included associations with gamblers, but Durocher's friends included actor George Raft, alleged to have worked at gambling clubs, and mobster Bugsy Siegel. The previous month, Durocher and Dodgers President Branch Rickey accused Yankees President Larry MacPhail — the former Dodgers president — of having two alleged gamblers, handicapper Memphis Engleberg and casino manager Connie Immerman, in his box during an exhibition game between the Dodgers and Yankees in Havana. MacPhail retaliated by filing a complaint with Chandler.
More dirt: in April 1946, Durocher had been found not guilty in Brooklyn of second-degree assault involving 23-year-old John Christian at Ebbets Field on June 9, 1945. Durocher had been accused of breaking the fan's jaw. Durocher also had been criticized by Brooklyn's Catholic Youth Organization for having an affair with actress Laraine Day, who was married. Durocher and Day married in El Paso, Texas, on Jan. 21, 1947, a day after she obtained a divorce in Juarez, Mexico, from Ray Hendricks.
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Feb. 3, 1993 — Cincinnati Reds owner Marge Schott was suspended for one year and fined $25,000 by the game's executive council for bringing "disrepute and embarrassment" to baseball with her repeated use of racial and ethnic slurs. The suspension was shortened to eight months for good behavior.
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From 1987-90 — Arbitrator Thomas Roberts (Sept. 21, 1987) and arbitrator George Nicolau (Aug. 31, 1988, and July 18, 1990) rule baseball management conspired against free agents following the 1986, 1987 and 1988 seasons in violation of the sport's labor contract. Management settled the cases for a $280 million payment made on Jan. 2, 1991. Among the players affected: Jack Morris, Andre Dawson, Tim Raines, Jack Clark, Lance Parrish.
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Aug. 24, 1989 — Baseball Commissioner A. Bartlett Giamatti announced Cincinnati Reds manager Pete Rose agreed to a lifetime ban from baseball following an investigation of his gambling, which concluded Rose made 412 baseball wagers between April 8 and July 5, 1987, including 52 on the Reds to win.
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Dec. 13, 2007 — A 409-page report by former Senate Majority Leader George Mitchell to baseball Commissioner Bud Selig links 85 players to performance-enhancing drugs, among them are Clemens, Barry Bonds, Jason Giambi, Jose Canseco, Miguel Tejada and Pettitte. The House Oversight and Government Reform Committee holds hearings on the report in early 2008. On Aug. 19, 2010, Clemens is indicted by a federal grand jury in Washington on one count of obstruction of Congress, three counts of making false statements to Congress and two counts of perjury, all related to his testimony and a deposition he gave committee staff on Feb. 5, 2008.
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