New York Yankees pitcher Andy Pettitte testified Wednesday that he was only 50 percent sure Roger Clemens admitted to him that he had used human growth hormone. That is a problem for the prosecution. If the government hopes to arrive at proof beyond a reasonable doubt that Clemens used HGH performance enhancing drugs and by implication he lied to congress, then Pettitte’s testimony  now carries with it reasonable doubt. Perhaps Pettitte did, as Clemens famously claims, “misremembers” what Clemens told him.

“As you sit here today, you believe in your heart of hearts and your mind that you very well might have misunderstood Mr. Clemens,” Michael Attanasio, one of Clemens’ lawyers, said to Pettitte. “Sitting here now, you’re 50-50 that you misunderstood him, is that fair?”

Looking exasperated, Pettitte answered, “I’d say that’s fair.” That is what was reported from yesterday’s testimony by the New York Times News Service and The Associated Press.

Earlier in the case, the Government filed a brief outlining their reasons for requesting that Brian McNamee’s (Clemens’ alleged source for HGH) conduct relating to third parties be fair game at trial. The brief is in response to the defense’s motion to preclude from evidence anything regarding Brian McNamee’s conduct with any third parties associated with anabolic steroids or human growth hormone other than Andy Pettitte. The Court was initially inclined to grant Clemens’ motion but reserved a final ruling to take into account anything that might arise during the course of the trial. The issue was formally held in abeyance until such time as the Government requests that such evidence be presented to the jury. That time has now arrived.

Weeks after their original motion, the defense reversed itself, arguing for the first time that it would object to any testimony regarding McNamee’s assistance of Pettitte’s use of HGH. Both parties then argued the issue before the Court which decided not to make a final ruling until both sides were allowed to formally brief the issue. The Government’s brief and their analysis of the background history between Clemens, Pettitte and McNamee will be discussed here, their legal argument will be discussed in a subsequent post.

The Government intends to show evidence proving that Pettitte and Clemens met during Pettitte’s rookie season in 19955 and instantly bonded over their shared Texas roots. In 1998, McNamee was hired by the Toronto Blue Jays where Clemens was then pitching. Later that same year, McNamee first helped inject Clemens with anabolic steroids and began doing so regularly. The next season Clemens was traded to the Yankees, where Pettitte was then employed, and the two struck up a close friendship.

The two began working out together and Pettitte took advice regarding physical training from Clemens, viewing him as a kind of older brother. During the summer, Clemens recommended Pettitte consider hiring McNamee as a strength and conditioning coach. After many recommendations to the Yankees staff by Clemens, McNamee was hired as an assistant strength and conditioning coach for the team. Though he served no medical role on the team, McNamee frequently injected Clemens with HGH and anabolic steroids. Throughout this time Pettitte and Clemens were working out together frequently, at home and on the road and spent much time in and out of work in one another’s company.

It was during one such workout session that Clemens first told Pettitte about his use of HGH to help with recovery from an injury. Pettitte had never heard of the drug but eventually approached McNamee and discussed the revelation. Soon thereafter, Pettitte injured his elbow and, desperate to recover, approached McNamee about whether we would recommend anything to fix the problem. McNamee suggested HGH might work and Pettitte decided to use the hormone. Pettitte stopped using HGH only a few days later, feeling guilty and uncomfortable about what he’d done. Pettitte used HGH one more time again a few years later to recover from another injury.

In March 2005, a House Committee held hearings on performance enhancing drugs in professional sports which got Pettitte thinking about what he would say if a reporter asked him about using drugs. He told McNamee that he would reveal his HGH use to the media and McNamee in turn advised him that such a revelation would get McNamee in trouble. In 2005, Pettitte approached Clemens to ask his thoughts; especially given Clemens’ own admitted use of the drug. Clemens denied ever having used the drug, saying that Pettitte must have misunderstood their earlier conversation.

In October of 2006, Pettitte, Clemens and McNamee were named in a front page Los Angeles Times article about a recently issued search warrant related to performance enhancing drugs. In 2007, McNamee spoke to Senator George Mitchell who was leading Major League Baseball’s private investigation into performance enhancing drug use in the sport. He then tipped off both Pettitte and Clemens that they would be named in the eventual report.

GOVERNMENT’S MEMORANDUM OF LAW REGARDING ANDY PETTITTE’S HGH-BASED DEALINGS WITH BRIAN McNAMEE

(Lee Davis is a Chattanooga attorney who can be reached at lee@davis-hoss.com or at 266-0605.)