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.)

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