Objection! Numerous bench conferences have slowed the pace of the Roger Clemens perjury trial, as each side calls out the other on questions that are potentially not allowed.
Sometimes U.S. District Judge Reggie Walton on his own tells the lawyers to approach the bench. Just as the judge did early in the trial to point out that a juror was sleeping. "Just wanted to let you know," Walton told the prosecutors and defense lawyers, according to a transcript.
Another take-away from a review of several recent bench conferences: the gag order ends after a witness testifies. That’s what Walton said at a bench conference this week regarding the testimony of government witness Andy Pettitte. (After his testimony, Pettitte declined to comment.)
Below are excerpts from some of the bench conferences in recent days, including a series of exchanges during Pettitte’s testimony in which a defense attorney for Clemens drew the ire of Walton. The transcripts were released today.
On Wednesday, Clemens defense lawyer Michael Attanasio of Cooley’s office in San Diego was asking Pettitte, a government witness and former Clemens teammate, about a specific Clemens pitching performance in 1999.
A top Clemens prosecutor, Steve Durham, objected to what he characterized as information that was beyond the scope of the direct examination of Pettitte. The issue concerned whether Clemens was so depressed and beaten up then that he would start taking drugs to perform better.
Walton noted in a bench conference during this testimony that the defense does not have a right to build its case during the government’s pitch to jurors. Walton sustained the government’s objection, restricting the ability of Pettitte to testify about whether Clemens was downtrodden after a loss.
Attanasio went on to ask Pettitte whether he had ever seen Clemens “broken and beaten” after a bad game. Pettitte said no.
“Now, sir, between 1999 and 2007, when you worked out with Mr. Clemens in these incredibly hard workouts[…]” Attanasio said, before Walton cut him off and ordered the lawyers to gather at the bench.
Walton was upset with Attanasio. “I’m getting sick and tired of making rulings and counsel not listening to my rulings,” Walton said, according to a transcript. “I’m not the Court of Appeals. If I’m wrong, they’ll tell me I’m wrong. When I make a ruling, you all will comply. If you’re not going to comply, we’re going to have problems.”
And then this: “I try to be nice counsel, but I can be tough, too. Now, please, don’t defy me. If you do, you’ll pay a price.”
Walton told Attanasio that the defense, during its case, could bring back Pettitte to discuss his observations about whether Clemens was dejected after a loss. “If you want to bring him back to testify about that, I said you have a right to, but don’t defy my rulings.”
Later that day, Attanasio apologized in open court to Walton.
“Just a point of personal privilege, your honor,” Attanasio said. “I wanted to be sure that I apologized to the court sincerely for what we discussed at the side bar,” the defense attorney said. “No intent.”
Walton's response: "I don't take stuff personally. Life is too short."
Before Durham was set to begin the redirect examination of Pettitte, on Wednesday, the prosecutors and defense lawyers huddled up at Walton’s bench.
During the cross-examination that Attanasio conducted, Pettitte indicated that the odds were 50-50 whether he misunderstood a conversation with Clemens in 1999 or 2000 in which Clemens allegedly told him he’d used human growth hormone. Pettitte has consistently said he doesn't remember much from the conversation.
Prosecutors were clearly concerned about the 50-50 odds testimony that Pettitte had just given.
A government lawyer, Gilberto Guerrero Jr., asked Walton to reconsider a ruling that barred the prosecution from getting into the full scope of a conversation between Pettitte and McNamee about growth hormone. That conversation happened after the chat between Pettitte and Clemens.
Jurors were allowed to hear that Pettitte asked McNamee about growth hormone. But the panel did not get to hear McNamee’s alleged reaction: Clemens, McNnamee said, was not supposed to tell Pettitte about HGH.
Allowing prosecutors to tell jurors about the Pettitte-McNamee conversation, Guerrero said at the bench, goes to the heart of Pettitte’s confidence that he, in fact, remembers correctly the conversation he had with Clemens.
Walton wasn’t buying the argument. The judge described the prosecution position as “mental gymnastics.”
“There are facts in the case that confirm the other 50 percent--that confirm that there was no misunderstanding,” Guerrero said.
Walton told the prosecutors that they can ask Pettitte on redirect examination this: “You can inquire for as long as you want about what he heard and what his memory was and what it is now.”
When Durham resumed, in open court, he did not ask Pettitte about his memory of the conversation he had with Clemens about growth hormone.
Instead Durham tried to establish that Pettitte remembers significant events in his life. Like the time he knocked one out of the park against Chan Ho Park.
Later that day, Attanasio asked Walton to strike Pettitte’s testimony about his conversation with Clemens from 1999 or 2000. The judge hasn’t yet ruled.
Testimony in the Clemens trial resumes Monday. McNamee, a key witness, could testify as early as Tuesday.