Asked by defense attorney Michael Attanasio whether sitting in court at the moment he believes he might have misunderstood Clemens in thinking he'd admitted to taking HGH, Pettitte said, "I could have."
Attanasio then asked Pettitte whether it was fair to say "you're 50-50 that you might have heard that or might have misunderstood" that Clemens said he used HGH.
"I'd say that's fair," Pettitte said.
The developments regarding Pettitte's testimony were the primary issue on a day that also featured the conclusion of Congressional staffer Phil Barnett's testimony, which introduced former Major Leaguer Chuck Knoblauch's name to jurors, and the beginning of federal agent Jeff Novitzky's testimony, including how he came to investigate strength trainer Brian McNamee and ultimately receive the physical evidence the government contends links Clemens to the use of steroids.
Following his testimony, Pettitte, the 39-year-old former teammate and longtime friend of Clemens now making a comeback with the Yankees after a year of retirement, left the U.S. District Court for the District of Columbia without speaking to the media, exiting the courthouse and entering a black SUV to depart.
Clemens is facing six federal charges of perjury, giving false statements and obstruction of Congress stemming from his Feb. 5, 2008, deposition and his Feb. 13, 2008, appearance before the House Committee on Oversight and Government Reform, during which he denied ever using performance-enhancing drugs.
Pettitte also gave a deposition to the House committee in 2008, saying Clemens had told him during a workout at Clemens' home gym sometime before the 2000 season that he had used HGH. Pettitte reiterated that recollection under direct examination on Tuesday, but his agreement under cross-examination that he is 50-50 on whether he misunderstood Clemens dealt a significant blow to the early case the prosecution is presenting.
In redirect examination, Assistant U.S. Attorney Steven Durham attempted to get Pettitte to further establish his recollection of the key conversation before the 2000 season. But Walton pointed out, with the jury out of the room, that he believed the government had not rehabilitated the statements and that he, and therefore most likely the jury, couldn't be confident that Pettitte was certain about the conversation.
"My understanding is that at this time he's conflicted, he didn't know if Mr. Clemens said that to him," Walton said.
With that damage done to the testimony of one key government witness, the battle over what will be allowed into the trial about another -- McNamee -- continued behind the scenes.
McNamee, who served as a strength trainer for both Clemens and Pettitte, testified before Congress that he injected Clemens with steroids and human-growth hormone on numerous occasions. The two legal sides have argued about how much of McNamee's "prior bad acts" will come into play, and Wednesday his divorce became an issue before the court.
Attorneys for McNamee and his ex-wife submitted motions to quash a subpoena by Clemens' lawyers to release records of the McNamees' divorce proceedings, records which under New York law are confidential. McNamee's lawyer, Richard Emery, said the subpoena is part of an attempt to "embarrass Mr. McNamee" and Eileen McNamee's lawyer said it is part of "a scorched-earth campaign to clear [Clemens'] tarnished reputation" and that Clemens already has violated the privacy of the McNamees' three children.
Steve Fehr, a general counsel for the Major League Baseball Players Association and the brother of the union's former executive director, Donald Fehr, was to be called to the witness stand after Pettitte. But Walton ruled that testimony from Fehr about whether Clemens was informed that investigators for the Mitchell Report wanted to talk to him in 2007 -- which he said before Congress he was not, but said in a "60 Minutes" interview that he was -- would be inadmissible. He finally cut off an argument from Assistant U.S. Attorney Daniel Butler on the matter, saying he was "beating a dead horse."
The prosecution then postponed Fehr's testimony and moved toward re-direct examination of Barnett. Under Durham's questioning, Barnett named Pettitte and Knoblauch as players the Mitchell Report said used human-growth hormone in response to a question about whether Clemens was the only player being investigated by the House committee.
Knoblauch, whose name along with other players had been ordered left out of the trial before Walton ruled the defense opened the door to it in its cross-examination of Barnett, admitted in a transcribed interview (which does not require an oath) to the House committee that he used HGH as written in the Mitchell Report on performance-enhancing drugs, Barnett said.
With Barnett's testimony complete, the government called Novitzky, who as a special agent for the Internal Revenue Service was at the forefront of the Bay Area Laboratory Co-Operative (BALCO) investigation and related investigations into the distribution of performance-enhancing drugs. Novitzky testified to having received a tip that former Mets clubhouse attendant Kirk Radomski had been distributing PEDs and executed a search warrant on Radomski's house that eventually led to an investigation of McNamee.
By the end of the day's session, Novitzky discussed meetings he had with McNamee to discuss the strength trainer's alleged involvement in distribution of PEDs, saying Clemens was one of the people mentioned in the conversations. Novitzky also related the receipt from Emery of medical waste McNamee says he kept in a beer can that the government contends connects Clemens via DNA evidence to using steroids.
Before calling for an extended lunch break, Walton told lawyers the pace of the case is getting to the jurors. The panel of 16, which includes 12 jurors and four alternates, has been subjected to dozens of bench conferences, some of several minutes, out of their earshot while in the courtroom and other arguments made with them out of the courtroom.
"I think we're driving the jury crazy," Walton said.
Durham told the court at the end of the day that the prosecution case will include, at the most, 20 more witnesses and is likely to take two more trial weeks.