By Steve Kallas
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On Monday, April 23, 2012, in a federal courtroom in Washington, D.C., the second criminal trial of former pitching great Roger Clemens began before United States District Judge Reggie Walton.  After the jury was seated and instructed by Judge Walton, the prosecution gave its opening statement.  The two issues that will be discussed below are the limitations set forth by the judge on the expected testimony of Andy Pettitte and the appearance of Yankee executive Brian Cashman as a witness.


In this writer’s opinion, arguably the key witness in the trial, the argument outside of the jury’s presence was whether Andy Pettitte would be allowed to testify that he got his HGH from trainer Brian McNamee, who is the main accuser of Roger Clemens.

After arguments back and forth, during which the prosecution stated that this testimony was part of the “steroids narrative” and the defense argued that this testimony was irrelevant to the case, Judge Walton determined that, at this time, such testimony would not be allowed.

It seems that Judge Walton has made a finding under the Federal Rules of Evidence that allowing such evidence would be prejudicial to Roger Clemens.  That is, that the prejudicial effect of such testimony would outweigh the probative value of the testimony.  According to the New York Times, Judge Walton said that “the reasonable inference is to induce that Mr. Pettitte got it [the HGH] from Mr. McNamee, and I just think there’s too much potential for that having prejudicial impact on Mr. Clemens.”

Judge Walton also said that there was too much of a chance that, if Pettitte is allowed to testify where he got his HGH from, there would be too much potential for “guilt by association.”  While he reserved the right to change his mind later in the trial based on how the case is going and the testimony of others, it is unlikely that Andy Pettitte will ever testify in this case as to where he obtained his HGH.


According to the opening statement of the prosecution, Yankee executive Brian Cashman will be called as a witness by the prosecution.  Apparently Cashman will testify, among other things, that Roger Clemens insisted that the Yankees hire Brian McNamee back in 2000.  This will be part of the prosecution case to show that there was a close 10-year relationship between Clemens and McNamee.

However, Cashman’s testimony may cut both ways.  Before opening statements and outside the presence of the jury, Clemens attorney Rusty Hardin stated, according to the Daily News, that Brian McNamee had a “considerable substance abuse problem” and that Brian Cashman will testify about a Yankee trip to Seattle during which Brian McNamee passed out and was “incomprehensible.”

The defense opening statement will be given Tuesday morning and then the first witnesses will be called at the federal courthouse in Washington, D.C.  However, this will be a very short week in the case as Judge Walton is scheduled to go out of town for the rest of the week.

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