WASHINGTON -- The ability to "misremember" made its inevitable first appearance at the perjury retrial of Roger Clemens on Wednesday and momentarily detoured the court from a tedious jury selection process that will extend into a second week.
Shortly before the lunch break, U.S. District Judge Reggie Walton allowed the government's lawyers to respond to a filing from Clemens' lawyers over the scope of potential testimony from Clemens' former teammate Andy Pettitte.
Pettitte is expected to testify that Clemens acknowledged using human growth hormone in 1999 or 2000. Clemens famously told Congress in 2008 that Pettitte "misremembers" their conversation.
Pettitte also is 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, their filing states: "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. ... There is nothing to be gained for Mr. Pettitte's 'credibility' by proving an irrelevant fact about who injected him in 2002."
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 did not give the defense a chance to respond, instead returning to jury selection in the afternoon. The judge said he planned to rule on the filing on Thursday.
Clemens is on trial on charges he lied to Congress at the 2008 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.
Clemens, who once wore the pinstripes of the New York Yankees, arrived in a dark pinstriped suit for the second straight day. After going through security, the seven-time Cy Young Award winner mentioned to his lawyer that he had gone for a run from the Capitol to the Washington Monument.
The judge originally estimated the trial would last up to six weeks, but that timeframe is starting to appear optimistic given the glacial pace of jury selection.
The court has been working since Monday 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 Wednesday, 28 potential jurors had survived the first cut while others were sent home for a multitude of reasons, including some who said they already had a strong opinion about the case one way or the other. With no session scheduled for Friday, the judge said the jury will be seated on Monday at the earliest. Furthermore, Walton said the court will meet for only 1½ days next week because he has an out-of-town trip.
In the search for impartial jurors, lawyers on both sides are compelled to decide if a little knowledge is indeed a dangerous thing. One potential juror thought last year's mistrial resulted from inappropriate contact with jurors. Another mistakenly thought 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.
A recurring theme throughout the week has been potential jurors who question whether Congress should have been investigating steroid use in sports in the first place. One woman said lawmakers should be doing "more important things," but she nevertheless felt that anyone called to testify should tell the truth.
"Even if Congress asks you stupid questions, you shouldn't lie," she said.
The woman was dismissed.