WASHINGTON - The federal judge presiding over Roger Clemens' perjury trial said Tuesday he is leaning toward not allowing three former Yankees teammates to testify about their use of performance-enhancing drugs.
Prosecutors planned to call Andy Pettitte, Chuck Knoblauch and Mike Stanton as witnesses and were expecting the ex-major leaguers to testify that statements made by Clemens' chief accuser, trainer Brian McNamee, about their drug use in the Mitchell Report were accurate, possibly lending credibility to the prosecution's major witness.
But U.S. District Judge Reggie Walton said during a 90-minute pretrial hearing that he was worried that the players' testimony could jeopardize a jury's ability to make an impartial judgment about whether Clemens used performance-enhancing drugs.
"The jury may say, 'Well, if they knew what they were taking from McNamee then why wouldn't Clemens not know what he was getting?' " Walton said.
The judge will reserve a decision on whether to limit their testimony until he sees how the early part of the trial proceeds.
Clemens is charged with three counts of making false statements, two counts of perjury and one count of obstruction of Congress. The charges stem from testimony Clemens gave under oath during a congressional hearing on Feb. 13, 2008.
Walton added that he will likely not allow Pettitte's wife to testify about her recollection of a conversation her husband, a close Clemens' friend, said he believes he had with the star pitcher about human growth hormone in 1999 or 2000.
Pettitte has said in sworn testimony that Clemens admitted to him during that private conversation that he used human growth hormone, and Pettitte confided in his wife about that chat later the same day. Clemens said Pettitte, who still could be called as a witness, "misremembered" the conversation.
Prosecutors believe Laura Pettitte's testimony would help show a jury that Andy Pettitte has no problem remembering the conversation. But the judge said the more pressing issue is whether Pettitte understood Clemens correctly, not how well he remembers it.
Jury selection is scheduled to begin at 9 a.m. Wednesday.
Clemens attended Tuesday's hearing, sitting quietly at the defense table, taking notes. Dressed in a dark suit and light blue shirt and tie, he did not answer reporters' questions as he left the federal courthouse.
Walton also ruled that Clemens' attorneys are limited in what they can tell the jury about McNamee's alleged role in a 2001 sexual assault investigation in Florida as part of their opening statement.
Walton said mentioning the nature of the investigation would be "extremely prejudicial" because McNamee was never charged, adding that Clemens' attorneys can simply refer to it as a "criminal investigation."
The judge also said Clemens' wife, Debbie, will not be allowed to sit in the courtroom during opening statements, as well as during some witnesses' testimony, because of the defense's plan to call her as a witness. Allowing her to view courtroom proceedings could give her "a tactical advantage" when testifying, Walton said.
Walton added he was concerned prosecutors have been unable to obtain the audio of Clemens' deposition to congressional investigators, which was done a week before the February 2008 hearing.
Clemens' lawyer, Rusty Hardin, argued that he wants the jury to hear the tone of Clemens' voice as opposed to simply reading the words from a transcript, and assistant United States attorney Steven Durham said he had no issue with that.
However, Walton warned that if he got involved at this stage, the trial could potentially be delayed. He asked prosecutors and defense attorneys to work together to get Congress to agree to release the audiotape.