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.)


Spring Training Offers Hint Of Braves' Starting Rotation

LAKE BUENA VISTA, Fla. -- Less than a year after Kris Medlen and Brandon Beachy suffered season-ending elbow injuries approximately 24 hours apart, the Braves are not going to announce their rotation plans during the first week of March. But the club indicated their plans when they announced who will serve as starters through the first five days of the Grapefruit League season. ... (click for more)

Ex-Hawks Star, Jugovic, Picks Up 4th OVC Hoops Award

COOKEVILLE, Tenn. – For the fourth time this season, the Tennessee Tech men's basketball team saw the future of its program honored as Golden Eagle guard   Aleksa Jugovic captured his third adidas Ohio Valley Conference Freshman of the Week award Sunday evening.   A native of Serbia, Jugovic, who prepped at Hamilton Heights Christian Academy in Chattanooga, ... (click for more)

Tennessee Temple University To Close After Almost 70 Years

Tennessee Temple University, after almost 70 years in operation in Highland Park, is set to close after this semester. Trustees are set to vote on Tuesday morning to merge Temple with Piedmont International University of Winston-Salem, N.C. Students who are not graduating this semester would have the option to continue their education there. Bryan College in Dayton, Tn., and ... (click for more)

Brand-New Cleveland Police Chief No Longer In Charge After He Is Caught With Officer's Wife

The brand-new Cleveland Police Chief, Dennis Maddux, is no longer in charge after he was caught in his police car with the wife of one of his officers. City Manager Janice Casteel said she will temporarily lead the department. She said Cpt. Mark Gibson will be in charge of day-to-day operations. City Manager Casteel said, "Pursuant to Article Vlll Section 2 of the City ... (click for more)

Tennessee Deserves Better Health Reform

Tennessee needs health care reform. Expanding Medicaid under the Affordable Care Act, or "Obamacare," was not the best solution for Tennesseans. That is why the vast majority of Tennessee legislators never publicly supported the plan defeated in a special legislative session in February.   It is important to distinguish health care from health insurance. As one physician ... (click for more)

Roy Exum: Cameras Or Subterfuge?

State Rep. Andy Holt (R-Dresden) is an easy-to-like member of the Tennessee Legislature and the fact he is teaming with state senator Todd Gardenhire (R-Chattanooga) to rid the state of its loathsome traffic cameras is indeed a wonderful thing. The legislative action is long overdue, with the biggest winners being the out-of-state camera companies. That alone is just about all you ... (click for more)