U.S. District Judge Reggie Walton held a pretrial hearing Tuesday to consider what jurors will learn about trainer Brian McNamee, who has said he injected Clemens with steroids and human growth hormone several times during the decade they worked out together. Clemens' defense is focused on convincing jurors that McNamee is a liar, and his attorneys also want to introduce allegations that McNamee drugged and raped a woman in a Florida hotel pool while on a trip with the Yankees in 2001.
McNamee was questioned by local police and admits misleading them, but he has never been charged and has said he was trying to rescue the woman from drowning. Walton said he's concerned that the rape allegation would be "extremely prejudicial," but Clemens' attorneys say it shows why McNamee would have a motive to fabricate evidence that he injected their client with illegal drugs.
The investigation occurred in 2001, the same year that Clemens helped lead the Yankees to a World Series championship and that McNamee says he decided to save needles and gauze that he used to inject the star pitcher.
McNamee's Yankee contract was not renewed after the Florida investigation. Clemens attorney Rusty Hardin said those events in 2001 prompted McNamee to begin fabricating evidence against Clemens to protect himself financially. Clemens, however, hired McNamee as a personal trainer for several years, but Hardin has said his client didn't then know the full extent of what happened in Florida. Hardin also referred Tuesday to "another date rape incident" in Seattle involving McNamee but didn't fully explain what happened.
Walton said he would reserve a final decision on whether to allow the rape allegations to be mentioned until the trial is under way.
Clemens listened closely but didn't speak at the hearing. He appeared toned-down in a dark suit and pale blue shirt with matching tie -- gone were the blond highlights and flashy pinstripe suit with silver tie from his last appearance. He walked so quickly out of the courthouse, surrounded by news media, that Hardin called out from several yards behind, "Rog, wait up!"
Walton also is waiting to decide whether former Yankees Andy Pettitte, Chuck Knoblauch and Mike Stanton can testify that they got performance-enhancing drugs from McNamee. Walton said his tentative ruling is not to allow it because it will lead jurors to infer improperly that Clemens must have been getting illegal drugs if his teammates were, but he said he'll see if something changes his mind during the trial.
Walton said it would be "extraordinary" to allow such testimony and mentioned that he got cortisone shots from a trainer as a college football player. "I would not want to be held responsible for doing something inappropriate based on what that trainer was giving to other people," Walton said.
Assistant U.S. Attorney Steven Durham argued that the other player's testimony will corroborate McNamee's credibility, which is under attack by the defense, because it will prove the trainer had knowledge and ability to give drugs to Clemens. He said he expects the defense will argue that Clemens thought McNamee was getting vitamin shots from his trainer, but the teammates will testify "there was no misadvertising."
The hearing also raised an issue that Walton worried could postpone the trial. Attorneys revealed that the U.S. House has refused to turn over audio tape of Clemens' deposition by the House Government Reform Committee staff Feb. 5, 2008.
Clemens is accused of lying while under oath during that deposition and during testimony at a public hearing eight days later when he denied ever using steroids or human growth hormone. Both prosecutors and the defense expressed concern that jurors will not be able to judge fully from a transcript whether Clemens was intentionally lying.
Walton complained that the issue wasn't raised earlier. If he were to order the tape turned over, the House could appeal the ruling and that would delay the trial. Hardin said he hoped the committee could be "kindly and gently" persuaded to turn over the tape, and Walton suggested that Hardin remind them of the country's current fiscal condition. "It's going to cost the court a lot of money to have this trial delayed," Walton said.
Clemens is charged with six felony counts, including perjury, false statements and obstruction of Congress, which carry a maximum sentence of up to 30 years in prison and a $1.5 million fine. But even if jurors convict him on all counts, it's unlikely Clemens would serve nearly that long because he doesn't have a criminal record.
The trial, scheduled to last four to six weeks, begins with choosing 12 jurors and four alternates from a pool of 125. Walton plans to ask potential panelists to answer 67 questions about their background, opinions and knowledge of the case. Both sides sought a written questionnaire, but Walton said that's not his practice because it "disadvantages less-educated people." He said he would give attorneys wide latitude to ask follow-up questions.
Potential witnesses are barred from watching the trial. But Clemens asked for an exception so his wife, Debbie, could be with him throughout even though his lawyers say they will call her to testify. Prosecutors objected on grounds that could influence her testimony. Walton said she could attend during appearances by witnesses who won't relate to her testimony and anything after she testifies, but not opening arguments.
Pettitte is another important prosecution witness because he's the only person besides McNamee to say Clemens admitted using performance-enhancing drugs. Pettitte says Clemens made the admission during a conversation in 1999 or 2000, but Clemens testified before Congress that Pettitte "misheard" or "misremembers" the conversation.
Prosecutors want Pettitte's wife, Laura, to testify that her husband told her about the conversation the day it happened to counter any questioning of Pettitte's memory. Clemens attorney Michael Attanasio said Clemens didn't mean to attack Pettitte's recollection but only believes he misheard.
"He used the best words he could. He's not a scholar of linguistics," Attanasio said. Walton responded, "That's sort of the way I see it," but he reserved judgment on whether Laura Pettitte could testify.