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.)



Region Soccer FInals Set For Thursday

Several area teams will battle for region soccer titles on Thursday.  The winners will host state sectional games on Saturday and the losers will advance but have to play on the road Saturday. In Class A, CSAS traveled to Cascade on Tuesday and won 2-1.  Signal Mountain beat Community School 4-1 in their semifinal.   CSAS will play at Signal Mountain on Thursday ... (click for more)

Vols Say High-Octane Tide Has Schemes Similar To Georgia

Tennessee redshirt freshman quarterback Jarrett Guarantano , senior offensive lineman Jashon Robertson and sophomore linebacker Quart'e Sapp spoke to reporters during Tuesday's media availability. Guarantano, Robertson and Sapp discussed areas in which the Vols can improve and this week's game against No. 1 Alabama. The Vols take on the Crimson Tide on ... (click for more)

State Comptroller Says More Control Over Spending Needed At CVB

The state Comptroller’s Office is recommending the Chattanooga Convention and Visitors Bureau (CVB) board of directors take steps to adopt detailed policies concerning how the CVB spends its money.   The Comptroller’s Office has completed a review of Hamilton County’s hotel/motel taxes which are all forwarded to the CVB. The annual report is required by Public Chapter ... (click for more)

County Commission Votes 7-2 For Rezoning For C&D Landfill At Harrison

The County Commission on Wednesday voted 7-2 to approve rezoning for a Construction and Debris landfill at Harrison.  Voting in favor were Greg Beck, Warren Mackey, Sabrena Smedley, Greg Martin, Tim Boyd, Randy Fairbanks and Jim Fields.   Opposed were Chester Bankston and Joe Graham.  Commissioner Boyd said it was just the first step in permitting for ... (click for more)

Vote No On The Rezoning For A New Landfill In Harrison - And Response (3)

County Commissioners, please consider the following facts when voting on the rezoning request for a new privately-owned C&D landfill in Harrison.  Use of this property for a landfill has been rejected by the county three times in the past (1971, 1984 and 2007).  In 1971 and 2007 the County Commissioners unanimously rejected the proposal.  In 1984 the ... (click for more)

Roy Exum: ‘Mom Don’t Have…I Do’

It’s hard to know what goes through the mind of a five-year-old, particularly one who watches her mom go in and out of jail due to drug addiction. But little Sunshine Oelfke is obviously being raised right by her grandmother because the other morning, the five-year-old came into the kitchen before leaving for kindergarten with a baggie full of coins from her piggy bank. “I asked ... (click for more)