Defense seeks to strike testimony at Clemens' trial

WASHINGTON Mon May 7, 2012 5:58pm EDT

Former baseball star Roger Clemens leaves Federal District Court in Washington D.C. April 23, 2012. REUTERS/Kevin Lamarque

Former baseball star Roger Clemens leaves Federal District Court in Washington D.C. April 23, 2012.

Credit: Reuters/Kevin Lamarque

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WASHINGTON (Reuters) - Attorneys for ex-pitching ace Roger Clemens sought on Monday to strike a key witness' wavering testimony that Clemens once said he used performance-enhancing drugs, a critical element of the federal perjury case against him.

Andy Pettitte, a former New York Yankees teammate of Clemens, agreed last week under defense cross-examination that he was "50-50" about whether Clemens had told him in 1999 or 2000 he had used human growth hormone.

Pettitte's testimony was considered key to the prosecution's case that Clemens had lied to Congress about using performance-enhancing drugs during his 24-year career.

"The court should not allow the jury to consider an alleged 'admission' that has all the weight of a coin flip," the defense said in a U.S. District Court filing.

Clemens' attorneys, headed by Houston lawyer Rusty Hardin, asked that Pettitte's testimony about the conversation be struck from the trial record. They said it had failed to reach the "preponderance" standard for evidence of more than 50 percent.

Clemens is being tried for a second time on federal charges of lying to the House of Representatives' Committee on Oversight and Government Reform in 2008 about whether he used performance-enhancing drugs. His first trial ended in a mistrial last year.

Clemens, a seven-time winner of the Cy Young Award, baseball's highest annual honor for a pitcher, is among the game's biggest names linked to alleged drug use.

SHATTERED AMPOULES

The trial on Monday centered on testimony by federal agents about the handling of evidence supplied by Brian McNamee, Clemens' and Pettitte's former personal trainer.

The evidence included vials, needles, tissues, syringes and other material, some of it stuffed inside a 16-ounce Miller Lite beer can, that McNamee turned over in January 2008.

John Longmire, a Federal Bureau of Investigation (FBI) agent, said two ampoules of drugs out of eight McNamee handed over were shattered when they were shipped from San Francisco to the FBI's Washington office for testing.

Prosecution evidence introduced on Monday included photos of the interiors of Clemens' former apartment and McNamee's house, both in New York.

Prosecutor Steven Durham also said McNamee's testimony might have to be moved back to Thursday at the earliest. He had said last week the former trainer would take the stand on Tuesday.

The trial has been slowed by jurors' out-of-court appointments and Judge Reggie Walton's schedule.

The prosecution is expected to use McNamee to show that the trainer injected Clemens with anabolic steroids in 1998, 2000 and 2001 and with human growth hormone in 2001. Clemens' attorneys have called McNamee a liar.

(Reporting by Ian Simpson; Editing by Cynthia Osterman)

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