Lee Davis: The Roger Clemens Case: Update on Andy Pettitte’s Damaging Testimony

Thursday, May 10, 2012 - by Lee Davis
Lee Davis
Lee Davis

As discussed in a post last week, prosecutors have gone ahead and asked a judge to allow the jury to consider testimony from Andy Pettitte regarding Roger Clemens’ use of human growth hormone (HGH).

Assistant U.S. Attorney Steven Durham argued that Pettitte’s somewhat inconsistent statements during cross-examination by the defense last week should not serve to disqualify all his testimony. The prosecution’s recent filing before the federal court says that, “This jury must be permitted — if it desires — to fully credit Mr. Pettitte’s direct-examination testimony and discount any cross-examination inconsistencies.”

The defense had previously asked U.S. District Court Judge Reggie Walton to throw out the testimony of Pettitte. The defense argues the inconsistencies brought to light during cross show that Pettitte’s earlier statements are “not definitive enough to qualify to be an admissible statement.”

The most problematic remarks occurred under cross-examination on May 2, when Pettitte changed his testimony, telling the defense that he may have misunderstood a conversation with Clemens regarding his HGH use. Pettitte further undercut his earlier testimony by putting the odds at 50% that he had not properly heard the conversation with Clemens. The defense seized on the remarks saying that, “The court should not allow the jury to consider an alleged ‘admission’ that has all the weight of a coin flip.”

The request to have the testimony stricken is unusual and is rarely granted by a trial court.  The fact that it is under consideration is a statement as to its weakness.  The offered testimony by Pettitte must be relevant and have some reliability to be admissible.  Arguably a statement that Pettite now says he may be 50% mistaken about may mislead or confuse the jurors.

As previously described discussed herehere, and here, Clemens has been charged with one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury. If he is convicted of all charges he faces a maximum of 21 months in prison.

Read: “Clemens Prosecutors Ask Judge to Keep Pettitte Testimony,” by Tom Schoenberg, published at Businessweek.com.

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


PHOTOS: Ooltewah Tags East Hamilton With Loss, 6-2

Bryan Women Fall In Softball Conference Tournament Opener

The Bryan College Lions Softball Team swept the Buffaloes of Milligan College (Tenn.) in their doubleheader meeting during the regular-season back in the middle of March, but the Buffs were able to make adjustments and come out on top in Wednesday’s opening round matchup with the Lions on day one of the Appalachian Athletic Conference Softball Tournament. The 4-0 final was a pitching ... (click for more)

Attorney General Files Lawsuit Against Predatory Law Firm Targeting Grieving Families

Tennessee Attorney General Herbert H. Slatery III on Wednelsday announced the filing of a lawsuit against a Texas law firm, its sole attorney, and two investigators working for the firm, in connection with the tragic Woodmore Elementary bus crash. The civil enforcement action, filed in Hamilton County Chancery Court, alleges that the Witherspoon Law Group PLLC, based in Dallas, ... (click for more)

Multi-Agency Drug Bust Leads To 1 Of The Largest Meth Seizures In Hamilton County

Agents with the Hamilton County Sheriff’s Office Narcotics and Special Operations Division, along with personnel from the Tennessee Bureau of Investigation, Chattanooga Police Department and the DEA, arrested Mathew Turner, of Chattanooga, in the parking lot of the Holiday Inn Express in Tiftonia on Tuesday night.     A search of Turner’s vehicle revealed approximately ... (click for more)

Don't Clog Up The Last Remaining Semi-Unobstructed Route Into Town From North Of The River - And Response (2)

The proposal to turn Hixson Pike in Riverview into a more pedestrian friendly street is more than absurd.   Let's be honest. This is the last semi-unobstructed route into town from north of the river, due to I-27 construction and the bike lane/parking lot that is North Market Street.  So, now the businesses in Riverview would like parking on this main artery? ... (click for more)

Roy Exum: A One-Sided Opportunity

State education commissioner Candace McQueen has apparently fallen and hit her head. She most certainly needs to be examined after she came to Chattanooga on Monday and told the Times-Free Press about an exciting “partnership.” Are you kidding me? Despite the newspaper’s editors actually touting the venture as “promising,” the lady is clearly dancing by herself. With her Achievement ... (click for more)