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Clemens Waives Right to Appeal on Lawyer Conflict

Roger Clemens
Roger Clemens arrives at Federal Court Dec. 8, 2010 in Washington, DC. Photographer: by Brendan Smialowski/Getty Images

Feb. 2 (Bloomberg) -- Ex-New York Yankees pitcher Roger Clemens, accused of lying to Congress about steroid use, told a federal judge he won’t challenge a possible conviction on grounds involving his lawyers’ potential conflict of interest.

Clemens, responding to questions from U.S. District Judge Reggie Walton during a hearing today in Washington, indicated he understood the ramifications of the potential conflict and waived his right to contest it. By agreeing, Clemens signaled that he wants to keep his current legal team.

“Are you willing to waive any potential conflict,” Walton asked.

“Yes sir,” Clemens responded. “That is correct your honor.”

U.S. prosecutors requested the hearing, saying Clemens’s lead lawyer, Rusty Hardin, and his Houston-based law firm previously did work on behalf of Yankees pitcher Andy Pettitte. That work may bar Hardin and his firm from cross-examining Pettitte, a government witness, if the criminal case against Clemens proceeds to trial, prosecutors said.

Hardin said during the 20-minute hearing that a lawyer from another firm had been retained specifically to avoid any conflicts that might arise from the previous work for Pettitte.

Obstruction, False Statements

Clemens, 48, was indicted in August on one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury. Clemens, who also played for the Boston Rex Sox, Toronto Blue Jays and Houston Astros over a 24-year Major League Baseball career, pleaded not guilty. He faces a $1.5 million fine and a maximum of 30 years in prison if convicted on all charges. Jury selection is scheduled to begin July 6.

In December 2007, Hardin and other members of his firm, Rusty Hardin & Associates, met separately with Clemens and Pettitte to discuss a report to Congress on the use of performance-enhancing drugs by Major League Baseball players, prosecutors said.

The lawyers talked to Clemens and Pettitte about the possibility that they would be named in the report as alleged users of the drugs. The allegations of drug use were made by Brian McNamee, a former trainer to both Clemens and Pettitte.

During today’s hearing, Walton first asked a series of questions of Hardin about the Pettitte meeting and whether Hardin gave Pettitte any legal advice.

‘I’m Not Sure’

“I had an interview with him at which he relayed certain information,” Hardin said. “I’m not sure I gave him advice.”

Walton then asked Hardin whether any of that information from Pettitte was relayed to other members of Clemens’s defense team. Hardin said Michael Attanasio of Cooley, Godward, Kronish in San Diego was specifically retained in January 2010 to “deal with this particular issue.”

The government said it had no problems with Clemens keeping his legal team, but did ask Walton whether Hardin would be allowed to challenge Pettitte’s testimony during closing arguments.

“I don’t intend to be going after Andy Pettitte,” Hardin said.

Attanasio would cross-examine Pettitte if he was called to testify by prosecutors.

Walton said during the hearing that he wanted to alert the parties to something that happened “a few months ago” while the judge was visiting his hometown in Donora, Pennsylvania. Former Cincinnati Reds outfielder Ken Griffey Sr., who Walton said he “played ball with,” came up to him and asked the judge whether he was handling the Clemens case. Walton said he was and that Griffey responded, “He’s a good guy.” Walton said he told Griffey that he couldn’t talk about the case.

Prosecutor, Defense Agree

Walton asked whether either of the parties would object to him continuing to preside over the case because of the incident. Both Assistant U.S. Attorney Daniel Butler and the defense said they were fine with it.

“Are we allowed to say ‘Amen’?” Hardin asked.

Clemens, in a Jan. 21 filing, asked Walton to dismiss the charges, saying the indictment doesn’t explain how he allegedly obstructed a congressional investigation in 2008 when he denied using performance-enhancing drugs.

Walton has yet to rule on the motion to dismiss.

The case is U.S. v. Clemens, 10-cr-00223, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at

To contact the editor responsible for this story: David Rovella at

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