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.)


Atlanta Silverbacks Dodge Chattanooga Upset In Overtime

The Chattanooga Football Club was minutes away from a 1-0 upset of visiting Atlanta Silverbacks in the third round of the US Open Cup. After battling for 87 minutes of scoreless soccer, the Chattanooga team representing the NPSL scored the potential game winner when Luke Winter finished off a cross from John Finlay. Minutes later, a foul in the box by CFC led to a Atlanta ... (click for more)

This Day In Baseball History, May 28.

1930  Phillies right-hander Grover Cleveland Alexander ends his 20-year career with a relief appearance in the team's 5-1 loss in Boston. 'Old Pete' finishes his two decades in the major leagues with a 373-208 (.642) record, which includes winning 30 or more games in three consecutive seasons beginning in 1915, along with a 2.56 lifetime ERA. 1939  Over two successive ... (click for more)

Circuit Court Jury Gives $20,599,000 Verdict In Favor Of Canyon Ridge Developers; Punitive Damages To Be Added

A Hamilton County Circuit Court jury on Thursday awarded $20,599,000 to the developers of Canyon Ridge on Lookout Mountain against a financial firm that allegedly secretly started working on a rival project. The jury also said the plaintiffs are due punitive damages. The amount will be set on Monday morning in the courtroom of Judge J.B. Bennett after each side gives 20-minute ... (click for more)

Chattanooga Loses Bicycle National Championships To Winston-Salem

After a three-year run, Chattanooga is losing the national championship bicycle races. Winston-Salem, N.C., has been selected to serve as the host city for the 2016 and 2017 Volkswagen USA Cycling Professional Road & TT National Championships. The 2016 Volkswagen USA Cycling Pro Road & TT National Championships will be held May 22-30. The nine-day event will combine the ... (click for more)

The Truth About The Rising Costs To East Ridge On The Fire Hall Property - And Response

Re:East Ridge Has To Pay Unexpected $428,000 On Bass Pro Shop Deal   H ere is the truth about this article.    One section of the article says: " Unknown to anybody on the council today, the agreement limited use of the land to a fire hall."     In a letter dated Dec. 15, 2010, Mayor Lambert asked TDOT officials to ... (click for more)

Roy Exum: General Boykin Helps ‘Warriors’

General W.G. “Jerry” Boykin is one of the most fabled warriors in modern-day warfare. He is also one of the most polarizing men who has ever served his country. General Boykin, retired after 36 years as a soldier, spent 13 years in the secretive Delta Force. At one time he commanded the Green Berets and was in one some pretty impressive engagements. In 1980 he was in on the ... (click for more)