Updated 12:56 p.m.
What did Roger Clemens tell Andy Pettitte about the use of performance enhancing drugs?
That's a key question in the perjury prosecution of Clemens, the former professional baseball pitching star whom prosecutors alleged lied to Congress when he denied taking steroids and other drugs during his career.
Pettitte told jurors yesterday that Clemens mentioned to him in passing in 1999 or 2000 that he’d used human growth hormone, bolstering the prosecution's case. Today, back on the witness stand in Washington federal district court, Pettitte conceded he "might have” misheard Clemens.
Clemens defense lawyer Mike Attanasio then asked Pettitte whether it’s a 50-50 shot he misheard Clemens more than a decade ago during a workout. “I’d say that’s fair,” Pettitte responded. At that moment, the Clemens defense team injected reasonable doubt in the trial.
Pettitte said on the stand today he never saw Clemens broken or beaten down after a bad game. Responding to a question from Attanasio, a partner in the San Diego office of Cooley, Pettitte said he never looked out on the field and believed Clemens was using steroids.
“Roger had mentioned to me that he had taken HGH and it could help with recovery. That’s really all I remember about the conversation,” Pettitte testified Tuesday.
But there's a chance jurors may be told to disregard that testimony.
Attanasio wants U.S. District Judge Reggie Walton to strike Pettitte's testimony that Clemens told him he used human growth hormone. "The best he can say it’s 50-50 and that’s unchallenged," Attanasio said in court.
Walton seemed inclined to grant that request, saying that the state of the record shows that Pettitte doesn't remember what Clemens may have said to him. Clemens' defense lawyers said they'll file court papers overnight addressing the issue.
"My understanding is that his position, at this time, he’s conflicted,” Walton said outside the presence of the jury. “He doesn’t know what Mr. Clemens said to him."
On redirect examination this morning, Assistant U.S. Attorney Steven Durham did not bring up Pettitte's hedge on his recollection of what Clemens said in 1999 or 2000. Walton said he was waiting for Durham to ask Pettitte about his current recollection of that conversation. But the government did not go into that.
Durham focused his examination of Pettitte this morning on baseball, suggesting that as a player's body ages, there's a greater incentive to use performance enhancing drugs to keep on top of the game.
Durham asked, for instance, whether Pettitte has a goal of being elected into the Hall of Fame.
Pettitte testified his use of human growth hormone has reduced his chances to getting elected into the hall of fame. “People will think that I’ve tried to cheat to be better,” Pettitte said.
Durham's questions on redirect appeared design to show jurors that Pettitte remembers substantive events in his life. For instance, Durham asked Pettitte whether he remembers the details of any other conversations with Clemens from 1999 or 2000. Pettitte did not.
Durham ended his questioning by asking Pettitte whether he'd ever hit a home run. Yes, he knocked one out. And, at Durham's request, Pettitte readily recalled the name of the pitcher: Chan Ho Park.
Pettitte and Clemens had a second conversation, in 2005, about drug use. In March 2005 in Florida, Pettitte asked Clemens how he’d respond if reporters asked Clemens about his use of human growth hormone.
Clemens said then he hadn’t touched the stuff, saying that his wife once injected HGH. Attanasio today described Clemens’ reaction as “instantaneous and natural.”
Pettitte’s testimony Tuesday and today marked the most compelling moments of the trial so far. But another central government witness, Brian McNamee, is waiting on deck. Pettitte, like Clemens, continued to work with McNamee, after his termination from the Yankees.
McNamee was Clemens’ and Pettitte’s alleged source of performance enhancing drugs. Walton, however, refused to allow Pettitte to say where he obtained human growth hormone.
Walton asked Attanasio whether Clemens will testify at the trial about the reasons he continued to work with McNamee after his firing. “I can’t answer” that based on the state of the evidence right now, Attanasio said in court.