Dispute Over Pettitte Testimony At Clemens Retrial; 'No, No, No' Guy Qualifies
WASHINGTON (WFAN/AP) — The retrial of former Yankees star Roger Clemens turned from an early-week snoozer to something more intriguing Wednesday.
A man whose response to jury duty was "No, no, no, no, no" and who said he'd rather be sleeping was nevertheless found qualified to remain a potential juror in Clemens' perjury trial, which won't finish seating a panel before Monday.
Meanwhile, the court took time out to debate whether Clemens' former teammate Andy Pettitte could identify his source of human growth hormone as the trainer who allegedly supplied Clemens with performance-enhancing drugs. U.S. District Judge Reggie Walton said he'd try to resolve the issue Thursday.
The reluctant potential juror, a self-described unemployed 27-year-old, said he was a fan of basketball but not baseball — "It's not my sport" — and didn't know who Clemens was. The prospective juror had plenty of company: Lots of Washingtonians questioned since jury selection began Monday said they had never heard of the seven-time winner of the Cy Young Award. Several of those who had heard of him couldn't name any teams he played for (the Red Sox, Blue Jays, Yankees and Astros).
Clemens lawyer Rusty Hardin seemed a little concerned when the 27-year-old said he'd rather be asleep and he felt "groggy." But when Hardin asked the man if he could focus on a full day of testimony, the would-be juror replied, "Be wide awake."
Clemens is on trial on charges he lied at a 2008 U.S. House hearing and at a deposition that preceded it when he denied using steroids and HGH during his 24-season major league career. The first attempt to bring the case before the court ended in a mistrial last July when prosecutors played a videotape for the jury that contained a short segment of inadmissible evidence.
Some potential jurors in the new trial were familiar with that but didn't have all their facts straight. One thought last year's mistrial resulted from inappropriate contact with jurors. Another mistakenly thought that the 2007 Mitchell Report on drug use in baseball contained references that Clemens' wife took injections ahead of a photo shoot for Sports Illustrated.
Both made the cut. Clemens' lawyer Rusty Hardin argued the second man "has mixed in his mind" various pieces of information about the case, and Hardin asked Walton to disqualify him. But the judge said, "He seems to be an intelligent man," and kept the juror in the pool.
The court has been working for three days to narrow the initial jury pool of 90 to 36, from which the final 12 jurors and four alternates will be selected. The extra 20 are needed because Clemens' lawyers are allowed to strike 12 candidates and prosecutors eight — without giving any reason.
By the end of the day Wednesday, 28 potential jurors had survived the first cut. Walton hoped to pick the other eight Thursday and have a jury empaneled Monday. The trial is in recess Friday.
On the trial testimony issue, Pettitte is expected to say that Clemens acknowledged using human growth hormone in 1999 or 2000. Clemens famously told Congress in 2008 that Pettitte "misremembers" their conversation. Pettitte is also expected to say he tried HGH himself a few years later.
Prosecutors want Pettitte to be allowed to testify that the source of his HGH was Clemens' former strength trainer, Brian McNamee, who says he injected Clemens with steroids and HGH.
Clemens' lawyers claim that would be "classic 'guilt by association' evidence." Invoking their client's choice of vocabulary, they wrote in a court filing, "The government apparently misremembers what the defense has said repeatedly about Mr. Pettitte."
"We welcome Mr. Pettitte's appearance, when he will presumably testify, as he did in his deposition, that he 'must have misunderstood' Mr. Clemens," the lawyers wrote.
"We will take the position that Mr. Pettitte misunderstood everything Mr. Clemens told him," Michael Attanasio of the defense told Walton, according to the New York Daily News.
Prosecutor Steven Durham said in court that the source of Pettitte's HGH was crucial to the story. Durham noted that Pettitte and Clemens frequently worked out together with McNamee over several years.
"You cannot strip out half of the narrative and have it make any sense whatsoever," he said.
Walton returned to jury selection Wednesday afternoon and said he planned to come back to the Pettitte dispute Thursday.
Are you surprised the "No, no, no" excuse didn't work? Let's get your thoughts on the Clemens retrial below...
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