- Lester Munson, Legal Analyst
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WASHINGTON, D.C. -- Wednesday was a rough day for the prosecutors who are trying to persuade a jury that Roger Clemens lied to the U.S. Congress when he denied that he had ever used performance-enhancing drugs.
It was bad enough when U.S. District Judge Reggie Walton told the prosecutors that they were taking positions that were "totally absurd."
But it was even worse when he indicated that he was seriously considering an argument from the Clemens legal team that could force the jury to eliminate any consideration of Andy Pettitte's testimony that Clemens admitted to him that he had used HGH.
And that was not all. The judge finally noticed that the pace of the trial had dropped from slow to glacial. His observation came after the 16 jurors told him they were irritated that they were spending long spells in the jury room while Walton conducted lengthy and rambling colloquies with prosecutors and the Clemens defense team.
The threat to the prosecution's critical testimony from Pettitte came after Pettitte completed his testimony on Wednesday morning.
In his cross-examination of Pettitte, Clemens attorney Michael Attanasio had been emphasizing that Pettitte's account of Clemens' admitting HGH use was based on a "casual, passing reference" that came during a vigorous workout in 1999 or 2000. He used the phrase at least four times, highlighting the "huffing and puffing" that were part of the workout and the conversation. It was an effort to inject some uncertainty into Pettitte's account.
Then, in what may become a turning point in the trial, Attanasio asked this question and received this answer from Pettitte in the final question in a series of them inquiring whether Pettitte may have misunderstood Clemens when he admitted the HGH use:
"Would it be 50-50 that you may have misunderstood him?"
"That would be fair."
Steven Durham, recognizing that the "50-50" comment could be a problem, tried to rehabilitate Pettitte's testimony in a series of questions after Attanasio concluded his impressive cross-examination. It did not go well for Durham.
At one point, Pettitte included in an answer to a Durham question a mention of "the conversation that I thought I had in 1999 or 2000." The best that Durham could achieve was to elicit from Pettitte that he "made a mental note of the conversation at the time it happened" and that he did not remember any other specific conversations from 1999 to 2000.
Within seconds after Pettitte was excused from the witness chair and the jury left the courtroom, Attanasio pounced, demanding that Walton strike Pettitte's account of Clemens' admission of HGH use. "If his certainty is only 50-50, it does not qualify as evidence that should be presented to the jury" for its consideration, Attanasio said.
His argument was a surprise, and the judge's reaction was an even bigger surprise. In accusatory tones, Walton told Durham, "You did not ask the right question. You did not ask him what his recollection was today."
It was as close to a "gotcha" as you will ever hear from a judge presiding over a trial.
Why didn't Durham ask Pettitte for his current recollection of what Clemens said? Did he not know how Pettitte would respond? It's a possibility. In another series of questions, Durham raised the issue of Clemens' chances to be elected to the Hall of Fame. He asked Pettitte whether it was important to Clemens, but Pettitte responded that "I can't say I ever heard him talk about that."
The "50-50" comment and Attanasio's clever argument led Walton to a discussion of "quantitative analysis" of evidence. The different standards of proof in any trial range from proof beyond a reasonable doubt of guilt in a criminal case through the idea of "clear and convincing" evidence and finally down to a "preponderance" of the evidence.
In most rulings on the propriety of evidence, the "preponderance" standard is used. It means that the evidence is more probably true than not true, a standard that is frequently expressed as 51 percent by lawyers and judges.
Walton put the 51 percent expression of the standard together with Pettitte's testimony that it was 50-50 that he may have misunderstood Clemens. It puts the prosecutors in a bad spot.
Durham and his team will argue that the quality of the evidence is the important criterion and that quantitative analysis has no role in deciding what evidence a jury should consider. They may also argue that the "50-50" phrase is an idiomatic expression of colloquial American English and has no connection to the 51 percent standard of the rules of evidence.
It will be a difficult argument, but it is an argument the prosecution must win to preserve its chances of obtaining a conviction of Clemens.
It was a few minutes after the "50-50" arguments that Walton accused the prosecutors of taking positions that seem "totally absurd."
His observation came in a complex argument about the effects of attorney-client privilege on the government's attempt to prove that Clemens lied when he told the U.S. House of Representatives that he had "no idea" that former Sen. George Mitchell wanted to interview him as part of Mitchell's investigation into steroid use in Major League Baseball.
Mitchell made the request to the Major League Baseball Players Association, which relayed it to Clemens' agents. Prosecutor Daniel Butler wanted to show that Clemens and his agents refused to talk to the committee, but after an extensive argument Walton decided that the attorney-client privilege barred any use of communications among Clemens and the union.
It was a close call, and Walton may be right. But he may not. It is difficult to see how the prosecutors' attempt to present important evidence and some tricky circumstances qualified as "absurd."
The final surprise from Walton was his attempt to move the trial at a faster pace. He had been taking a leisurely approach, taking three days off to give a speech in Reno and two hours on Wednesday for a medical appointment. To move things along, he asked the prosecution how many witnesses they would present (20) and how long it would take (two weeks.) And then he announced that the trial would resume at 11 on Thursday morning, two hours later than the usual starting time.
Despite the setbacks, the prosecution ended the day on a positive note with testimony from Jeff Novitzky, the FDA agent who has led doping investigations since 2002. Novitzky is not only a creative and forceful investigator, he is a formidable witness who can capture and maintain the attention of the jury.