McNamee testified before Congress in a February 2008 hearing before the House Committee for Oversight and Government Reform that he injected Clemens with performance-enhancing drugs on numerous occasions. Clemens, a record seven-time Cy Young Award winner in his 24-year pitching career, denied that claim, telling the committee that he never used performance-enhancing drugs. The government has charged him with six counts of perjury, giving false statements and obstruction of Congress based on that testimony.
Pettitte told his story of HGH use to the same committee via a deposition, but the defense argues much of that testimony should not be used in this trial -- most of all that he received drugs from the same man who claimed to have administered them to Clemens.
"The fact that Mr. McNamee is the one who provided HGH to Mr. Pettitte is irrelevant to whether Mr. McNamee did the same for Mr. Clemens. Any other ruling would sanction a prosecution based on guilt by association, a vice long forbidden by this circuit and the Supreme Court," the defense response read.
By the end of the day, a total of 52 prospective jurors had been interviewed on the stand since Monday, with 28 of them retained thus far. The target number is 36 from which each side will be able to use strikes to pare down to a panel of 12 jurors and four alternates, a process Walton said he hopes can take place next Monday.
During a midday break in the jury selection process Wednesday, Walton asked for the government to explain its position relating to the breadth of Pettitte's testimony.
Assistant U.S. Attorney Steven Durham took to the podium and presented the court with the full narrative that the government contends connects Pettitte's use of HGH to his conversations with Clemens and McNamee. As described by the government, the narrative begins at Clemens' home gym prior to the 2000 season, when Pettitte says Clemens told him of his use of HGH -- of which Clemens told Congress in his testimony that Pettitte must have "misremembered." Pettitte said he then went right to McNamee to ask why he hadn't told him Clemens was using the substance, and McNamee reacted angrily that Clemens imparted that information.
It continues to 2002, when Pettitte, frustrated with his rehabilitation from an elbow injury, called McNamee to Florida and received HGH injections, and then to 2004, when Pettitte again used HGH, this time provided by his father.
The government said the narrative closes with a conversation at the Astros' Spring Training facility in 2005, during the first congressional hearings on steroids in baseball, in which Pettitte says he asked Clemens what he might tell the media about his use of HGH if asked. Clemens later testified to Congress that he didn't remember the conversation at all, and Pettitte testified that Clemens responded that Pettitte must have been thinking about Clemens telling him about his wife, Debbie, taking HGH.
"Our argument is, as we set forth in the papers, you can't strip out half of the narrative and have it make any sense whatsoever," Durham told Walton in the courtroom.
While acknowledging there is a danger of guilt by association, Durham suggested there are "controls and safeguards built into the judicial process" and instructions to the jury that can alleviate the issue. Ultimately, he said, the fact that McNamee provided the HGH to Pettitte is relevant.
"I'll be candid: Our biggest fear is [jurors] get this completely distorted picture" and that the "800-pound elephant is, 'Where did [the HGH] come from?'" Durham said.
The defense, which did not yet have the opportunity to give oral arguments on the issue to Walton, maintained that few of the elements of Pettitte's story relate directly to Clemens, and therefore much of the narrative must be kept out of the trial.
"... [T]here is no connection between the source of Mr. Pettitte's 2002 HGH injection, Mr. McNamee, and anything having to do with Mr. Clemens," the defense response stated, in part. "Mr. Pettitte testified unequivocally that Mr. Clemens had nothing to do with his use of HGH in 2002 [when Mr. McNamee injected him]. And Mr. Pettitte testified with equal conviction that his 2005 conversation with Mr. Clemens had nothing to do with Mr. McNamee. The relationship between these events is not relevant to the 'narrative' between these men."
Walton did not hear from the defense on that issue or another motion in front of him about the legitimacy of the Congressional hearings and how that will play out during the trial. He said Wednesday he will do that Thursday before the trial -- conducted four days a week so Walton can work on other cases on Fridays -- is adjourned for the weekend.
Wednesday's round of jury selection featured another wide range of people from the Washington, D.C., area, a group that included a woman who teaches hearing-impaired children and a man who is a retired political-science professor who escaped Germany at age 15 and went into the British army before coming to the U.S. in 1946. On the day, 13 of 20 jurors interviewed were retained.
One woman whose father was a defense attorney was excused after saying, "I think there are a lot of guilty people around with defense lawyers" and another man was excused after saying that he came in with the perception that Clemens took steroids.
And yet another said religious reasons prohibited him from serving, saying his religion forbids him to judge another man because that is left up to God -- drawing a response from Walton.
"Who's supposed to do it while we're here on earth until He gets to it?" Walton asked the juror, who had no response.
With eight more jurors to select to get to the next stage, Walton hopes to get to the count of 36 on Thursday and has asked prospective jurors to return Monday at 10 a.m. Walton also announced that the trial will go into adjournment next Tuesday at 1 p.m. for the remainder of next week because he has to go out of town, which means the first week of actual trial proceedings will be abbreviated to two days.