Attorneys busy in Clemens case

Jose De Jesus Ortiz

Houston Chronicle

January 22,2011

On the day Rusty Hardin asked a federal judge to dismiss or strike portions of the six-count federal indictment against Roger Clemens, federal prosecutors filed a pair of motions of their own.

In one, prosecutors included the Astros, Yankees, and the Houston-based agents for Clemens and Andy Pettitte as potential sources of records that could be used as evidence in the case against the seven-time Cy Young Award winner. Prosecutors also filed a motion asking the judge to determine if Hardin should be barred from cross-examining Pettitte.

On the conflict-of-interest motion, the issue likely will be resolved easily because the prosecutors wrote they aren't opposed to letting Hardin's co-counsel, Mike Attanasio, cross-examine Pettitte.

Clemens and Pettitte, former teammates with the Astros and Yankees, have been on opposite sides. They took different stances after their former trainer, Brian McNamee, linked them to the use of performance-enhancement drugs in the Mitchell Report in December 2007.

Conflict of interest?

For five to seven days, Hardin represented Pettitte and Clemens leading up to the release of the Mitchell Report. Although Hardin is not commenting out of respect for the gag order issued in the case by U.S. District Judge Reggie Walton, before the gag order he told the Chronicle and a district court judge that he would not cross-examine Pettitte.

In August, Clemens, 48, was indicted on three counts for allegedly making false statements, two for perjury related to his testimony at the congressional hearings in February 2008 and one count was for obstruction of Congress.

On Friday, prosecutors asked Walton to hold a hearing to decide whether Hardin has a conflict of interest in the case. Hardin and Attanasio do not oppose the hearing.

Business records at issue

Legal experts contacted by the Chronicle expect Walton to permit Hardin's arrangement with Attanasio.

"It's not necessarily a baseless motion by the government," said local attorney Philip Hilder. "It's got to be heard by the court to determine if there's a conflict and if so the extent and if it can be cured by bringing in a second lawyer to handle the examination of Mr. Pettitte."

The other government filing seeks to introduce a variety of business records as evidence. Some are from Hendricks Sports Management, the Spring-based business of baseball agents Randy and Alan Hendricks. They represented Clemens and Pettitte throughout their careers.

jesus.ortiz@chron.com