Copyright ©2012 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

AUDIE CORNISH, HOST:

It's ALL THINGS CONSIDERED from NPR News. I'm Audie Cornish.

ROBERT SIEGEL, HOST:

And I'm Robert Siegel. It was another bad day for the prosecution at the Roger Clemens perjury trial. The seven-time Cy Young Award-winning baseball pitcher is charged with lying to Congress when he testified that he had never used performance-enhancing drugs. But today, one of the prosecution's key witnesses revealed some uncertainty. Another big league pitcher, Andy Pettitte, who's now come out of retirement, conceded that he may have misunderstood his former teammate about whether he used human growth hormone.

NPR legal affairs correspondent Nina Totenberg was at the courthouse and joins us now. And, Nina, Pettitte had been considered a vital witness for the prosecution. It now sounds as though his testimony has collapsed.

NINA TOTENBERG, BYLINE: You got it. Remember that Pettitte is a key witness because he said that Clemens once told him during a workout session 12 or 13 years ago that he had used HGH. But today, under cross-examination, he acknowledged a fairly high degree of uncertainty. Defense lawyer Michael Attanasio asked him: Do you believe, in your own mind, that you might have misunderstood? Answer: I could have. Question: Do you believe it's 50-50? Answer: I think that's fair.

And by the end of the cross-examination, Pettitte was referring to the conversation as one that he thought he had with Clemens. The prosecution then tried to salvage its shredded witness but elicited nothing really helpful. And then the defense asked the presiding judge to strike all of Pettitte's testimony as insufficiently definitive.

SIEGEL: That would be a very dramatic turn of events. Any indication of whether the judge might actually do that?

TOTENBERG: Well, Judge Reggie Walton seemed to be edging in that direction. He said of Pettitte: He's conflicted. He doesn't know what Mr. Clemens said.

SIEGEL: Well, why would he do that? I mean, if there was a problem revealed in the testimony on the witness stand, why would the judge go so far as to tell the jury to disregard it?

TOTENBERG: Well, the judge is asking for briefing on the point, but he noted that all the precedents that he had found indicate that evidence can't be admitted unless it's basically more likely than not to be true. And if Pettitte now says that the chances of him having misunderstood Clemens in that one conversation are 50-50, that does not appear to meet that threshold.

SIEGEL: Now, as I understand it, the cross-examination of Andy Pettitte was not the only setback for the government today.

TOTENBERG: Hardly. The next witness up was supposed to be Steven Fehr, who's the general counsel for the baseball players' union, and the government wanted Fehr to testify about his conversations with Clemens' agent/lawyer. But the judge barred that testimony, telling the prosecution that it would be essentially a backdoor way of violating attorney-client privilege. You all are taking a position that's totally absurd, said the judge. I'd be reversed in a heartbeat if I let this in. And having lost the battle on that point, the prosecution decided not to call Fehr at all, having kept him waiting for two days.

SIEGEL: Nina, I realize this is still a trial in the very early stages, but, to put it mildly, it sounds like it hasn't gone very well for the prosecution.

TOTENBERG: Well, we have to say there still is physical evidence implicating Clemens, and testimony from his onetime trainer Brian McNamee, but McNamee has credibility problems as we've discussed. And that's why Pettitte was so crucial. In addition, I have to say that the prosecution's performance is really odd. After the mistrial last year, the prosecution more than doubled its resources in terms of lawyers, FBI agents, just in the courtroom. But the questioning takes forever, it's incredibly repetitive and meandering.

The prosecutor objects all the time during the cross-examination. The defense objections are far fewer. The judge calls the lawyers up to the bench for conferences on almost every objection. And as the judge observed at the end of this morning's session, the jury is going crazy at all the wasted time. And that is never good for the prosecution in a case like this where critics have questioned whether this is a good use of the taxpayers' money.

SIEGEL: OK. Thanks, Nina.

TOTENBERG: Thank you.

SIEGEL: That's NPR's Nina Totenberg.

Copyright © 2012 NPR. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to NPR. This transcript is provided for personal, noncommercial use only, pursuant to our Terms of Use. Any other use requires NPR's prior permission. Visit our permissions page for further information.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.

Comments

 

Please keep your community civil. All comments must follow the NPR.org Community rules and terms of use, and will be moderated prior to posting. NPR reserves the right to use the comments we receive, in whole or in part, and to use the commenter's name and location, in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.