The judge presiding over the trial of Roger Clemens expressed irritation at Congress for not providing prosecutors and defense lawyers with a 2008 audiotape of a deposition of the former star — but stopped short of ordering the House to turn the tape over.
U.S. District Judge Reggie B. Walton heard brief arguments regarding the deposition, conducted by House investigators, before beginning jury selection Wednesday.
The issue concerns whether the House needs to provide prosecutors and defense lawyers with a back-up audiotape of a deposition of Clemens before he testified before the House Oversight and Government Reform Committee, which was investigating the prevelance of steroids in baseball.
The House has has turned over its official transcript of the deposition. A stenographer created that transcript and used the backup audiotape to help prepare it.
Prosecutors had told defense lawyers last week that they thought they would also be able to obtain audio of the deposition, but House lawyers later balked at turning it over. They said the official record is the transcript.
In court on Wednesday morning, a lawyer for the House, William Pittard, said Congress could only turn over the tape if the House passed a resolution directing the House clerk to do so.
Rusty Hardin, Clemens’ lawyer, said he wanted the tape to help fight charges that his client obstructed Congress. “The tone of voice is important,” Hardin said.
Walton said in court that he did not think he had the power to order the House to turn over the tapes – such records are usually out of the reach of judges because Congress is a separate branch of government — and worried about the financial costs of delaying the trial to work out the issue.
But Walton also said it was unfair for Congress to refer Clemens to the Justice Department for prosecution and then not turn over the tapes. “It doesn’t look good for our government,” he said.
He directed Hardin and Pittard to discuss a way for the defense to obtain a copy of the tape.
A grand jury last year indicted Clemens on charges of perjury, obstruction of Congress and making false statements related to his depositions and then during his testimony before the House Committee of Government Oversight and Reform in 2008.
In those depositions, Clemens repeatedly denied taking steroids or Human Growth Hormone (HGH). At that same hearing, Clemens’ former trainer, Brian McNamee, said he injected Clemens with both of those banned substances with Clemens’ knowledge.
On Wednesday, Walton also seemed to reconsider a potential ruling that would forbid teammates of Clemens from testifying in a way that would bolster prosecutors’ argument that Clemens had to have known he was being injected with steroids and HGH.
Prosecutors hope to call former teammates – Andy Pettitte, Chuck Knoblauch and Mike Stanton – to say that McNamee injected them with banned performance-enhancing substances and they knew what they were getting. Clemens has said he thought McNamee was injecting him with a painkiller and vitamins.
Walton had said on Tuesday that he was inclined to block testimony of the former teammates about whether they knew what they were getting. He felt that testimony would be unfair because jurors might infer that if those players knew they were being injected with drugs then Clemens must also have known he was being giving such drugs.
But on Wednesday, Walton warned defense lawyers that he might reconsider if they argue McNamee “concocted” the story about injecting Clemens with steroids as a way to essentially blackmail the player into hiring him after he was fired from the Yankees in 2001.
Defense lawyers in court on Tuesday indicated they might argue that McNamee kept needles and other materials used on Clemens and then fabricated a story about Clemens’ steroid use as a way to force the pitcher to hire him as a personal trainer.
McNamee lost his job with the New York Yankees in 2001 after he was investigated on allegations he raped a woman. He was not charged with any crime.
But Walton said Wednesday that the lawyers’ argument would open the door to allowing the teammates to testify about their own injections. He said it would have been easier for the trainer to “concoct” stories about them because they have admitted to actually taking the drugs, rather than creating a story about Clemens, who has denied it.