The judge in the Roger Clemens perjury case this morning said the jury will be allowed to review testimony from Andy Pettitte about a conversation he said he had with Clemens about his use of human growth hormone.
The judge, Reggie Walton of U.S. District Court for the District of Columbia, said prosecutors met their burden to keep the Pettitte testimony alive in the high-profile case in Washington.
The Pettitte testimony goes to the heart of the prosecution case that Clemens lied to Congress in 2008 when he denied ever using steroids or growth hormone. Clemens, a former Major League Baseball pitching star, is charged with crimes that include perjury and obstruction of Congress.
Pettitte testified this month that Clemens told him in 1999 or 2000 he had used human growth hormone for recovery. Clemens claims he told Pettitte several years later that Pettitte did not remember the conversation correctly. Pettitte said on the stand, during cross-examination, it’s a 50-50 chance he may be wrong about what he heard.
Walton today described Michael Attanasio’s cross-examination as “skillful.” Still, the judge refused a request from Clemens’ attorneys, including Attanasio of Cooley and Houston's Rusty Hardin Jr., to strike that portion of Pettitte’s testimony.
The judge said the jury should be allowed to assess which version of Pettitte’s testimony to believe.
Walton took up the dispute over Pettitte’s testimony today outside the presence of the jury.
The judge this morning also assessed whether Clemens’ attorneys should be able to see and use divorce records that pertain to a chief witness for the government, Brian McNamee, a former strength trainer for Clemens. Walton said the Clemens defense was on a "fishing expedition." He granted a motion to quash.
The prosecution, led by assistant U.S. attorney Steven Durham, this morning asked Walton to reconsider an earlier ruling that barred the government from playing a portion of Clemens’ interview with the CBS News program 60 Minutes.
Citing protections flowing from the attorney-client privilege, Walton earlier in the case blocked the government from playing that clip for jurors.
Prosecutors want jurors to weigh apparent inconsistent statements from Clemens about why he did not speak with DLA Piper lawyers and investigators who were, at the request of Congress, exploring steroid use in baseball.
In the interview with 60 Minutes, which aired in January 2008, Clemens told Mike Wallace that he “listened to his lawyers” and was “advised” not to speak with former U.S. Senator George Mitchell, then the chairman of DLA Piper. Mitchell led the investigation of drugs in Major League Baseball.
“A lot of the players didn’t go down and talk to him. But, but if I would have known what this man – Brian McNamee – would have said in this report, I would have been down there in a heartbeat to take care of it,” Clemens told Wallace. who has since died.
Several weeks after the interview aired, Clemens told a congressional committee that he was “never told by my baseball agent/attorney that we were asked to come down and see Senator Mitchell.”
Prosecutors said in the court papers today that Clemens’ statement on 60 Minutes “is relevant because it suggests that his later sworn statements were false, and the defendant cannot claim any attorney-client privilege for a statement made on national television.”
Clemens’ lawyers argue the statements are not inconsistent. They note that he was asked in the 60 Minutes interview about speaking with Mitchell’s investigators, not with Mitchell himself.
Prosecutors contend that Clemens, in the interview and on Capitol Hill, did not distinguish between Mitchell and his team of investigators.
“When the defendant voluntarily spoke about a conversation with his counsel in a nationally televised interview, he waived any attorney-client privilege regarding the advice he received from his attorneys about whether to speak to Senator Mitchell,” prosecutors said in the court papers today.