After stumbling its way to a mistrial of Clemens last year, the government is struggling again in the retrial – to the point that the crux of Pettitte’s testimony might be tossed out. First, the exasperated judge criticized the questioning of Pettitte on Wednesday, then he ruled against prosecutors in another matter. Finally he cried out: “You’re taking positions that are totally absurd to me.”
Pettitte, Clemens’ longtime friend and former teammate, was on the stand for a second day in the trial that is to determine whether Clemens lied at a 2008 congressional deposition and hearing when he denied taking steroids and human growth hormone.
During cross-examination, Clemens’ lawyers got exactly the answers they wanted.
Might Pettitte have misunderstood when Clemens supposedly acknowledged using human growth hormone to Pettitte in a conversation during the 1999-2000 off-season?
“I could have,” Pettitte answered.
Is it fair to say there is a “50-50” chance that Pettitte misunderstood?
“I’d say that’s fair,” Pettitte replied.
The government tried to salvage their witness, but prosecutor Steven Durham’s follow-up questions were lacking – at least in the minds of Clemens’ lawyers and, more importantly, U.S. District Judge Reggie Walton. Clemens’ lawyers moved to strike Pettitte’s testimony about the 1999-2000 conversation as “insufficiently definitive.”
The judge seemed to agree, openly wondering why Pettitte wasn’t asked for a current, definitive recollection of the conversation. He repeatedly berated Durham, who was also part of the government team last July when prosecutors showed the jury a snippet of inadmissible videotaped evidence, prompting the mistrial.
“I was waiting for you to ask, and you didn’t ask that,” Walton said.
“My understanding is that (Pettitte’s) position is at this time, he is conflicted. … His testimony now before the jury is ‘I don’t know,’ ” the judge continued. “I thought that what we would hear is, ‘Mr. Pettitte, currently, what is your memory of what Mr. Clemens told you back in 1999?’ ”
In other words, the jury might have concluded that maybe Pettitte did “misremember” the conversation, as Clemens has claimed.
Durham tried to contend that he addressed the matter in a different way. The defense will file a brief in support of its position, and Walton could rule on Pettitte’s testimony as early as today.