The judge in the Roger Clemens perjury case today permitted prosecutors greater flexibility in telling jurors about the ties a key witness has to drug use in professional baseball.
Prosecutors had been concerned the jury in the Clemens case was left with the impression that the witness, Brian McNamee, was fixated only on telling the authorities about Clemens and his alleged use of performance-enhancing drugs.
The concern flowed from the lengthy cross-examination of McNamee last week in U.S. District Court for the District of Columbia, where Clemens is charged with lying to Congress in 2008 when he denied using steroids and human growth hormone. A lawyer for Clemens, Rusty Hardin Jr., struck at McNamee’s credibility, suggesting he sought to capitalize on allegations made against Clemens.
Prosecutors last week asked U.S. District Judge Reggie Walton to allow the government to tell jurors that McNamee provided credible information about other players’ drug use. Clemens’s lawyers argued the government wanted to present “guilt by association” evidence. In a win for the Justice Department, Walton this morning allowed McNamee to testify he provided two other players, Andy Pettitte and Chuck Knoblauch, with performance-enhancing drugs and that he also told the authorities about his actions.
Walton said today that Hardin’s cross-examination of McNamee, which played out for more than three days last week, opened the door for the government to tell jurors about other players and drug use. Pettitte and Knoblauch have admitted using performance enhancing drugs.
Clemens's lawyers said the government only wanted the additional drug testimony to establish “guilt by association”—the idea that McNamee must be telling the truth about Clemens because two other players said McNamee's information is credible.
In court this morning, Hardin said jurors already know that McNamee provided information about other players to the authorities who were investigating drug use in Major League Baseball. Walton countered, saying the jury knows “very little about it” and that the panel has “no idea” who the other players are.
Shortly after the ruling, Assistant U.S. Attorney Daniel Butler jumped right into the disputed information. “Mr. McNamee, in 2001, did you provide another player with human growth hormone?” Butler asked. “Yes, sir,” McNamee replied.
“And who as that player?” Butler continued. “That was Chuck Knoblauch,” McNamee said, identifying a former infielder with the Yankees.
McNamee also testified today he put Mike Stanton, a left-handed relief pitcher for Yankees, in touch with Kirk Radomski, an admitted drug distributor who was convicted in 2007 on federal drug and money laundering charges. McNamee also said he provided Pettitte human growth hormone in 2002 in Tampa Bay, Fla.
In an instruction to jurors, highlighting the testimony from McNamee, Walton said he permitted the government to introduce evidence of McNamee’s alleged involvement in providing performance enhancing substances to other ball players.
“You can only use that evidence for a limited purpose, and that is your assessment of his credibility as a witness,” Walton told jurors today.
Immediately after Walton read the instruction, there was a conference at the judge's bench. Walton then announced in open court that jurors cannot infer Clemens’s guilt merely because McNamee has said he has provided drugs to other professional baseball players.
On the stand this morning, McNamee, the lone government witness who contends Clemens injected steroids and human growth hormone, said he regrets his involvement with drugs.
"I shouldn't have enabled it whatsoever," McNamee told Butler.
Prosecutors are hopeful jurors will see McNamee as a contrite, reluctant witness, someone whose life fell apart because of his involvement in the investigation of drugs in baseball. Clemens's defense lawyers portrayed McNamee as a fame-seeking, serial liar.
Walton has not ruled on mid-trial subpoenas that lawyers for Clemens served on Rep. Darrell Issa (R-Calif.), chairman of the House oversight committee, for his testimony at the perjury trial. House of Representatives attorneys said in court papers filed Friday evening that Issa should not be forced to testify at the Clemens trial.
The subpoenas are barred by the Constitution’s speech or debate clause, which gives some protection to congressional testimony and documents, a lawyer for Issa, William Pittard, said in the court papers.
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