By Steve Kallas
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(Note: this column was originally published on July 5, 2011, nine days before the original case against Roger Clemens resulted in a mistrial. The following still applies with Andy Pettitte on the stand in Round 2.)
As the perjury trial of Roger Clemens gets underway this week in federal court in Washington, D.C., much has been made of the two-page affidavit that former best friend Andy Pettitte signed on February 8, 2008.
THE PETTITTE AFFIDAVIT OF FRIDAY, FEBRUARY 8, 2008
Submitted to the Committee on Oversight and Government Reform of the United States House of Representatives, the affidavit is short and sweet: Clemens told Pettitte in 1999 or 2000 that he (Clemens) had used HGH. Pettitte told his wife about the conversation.
The affidavit goes on to state that, in 2005, Pettitte asked Clemens what he (Clemens) would say if asked about his HGH use. At that time, Clemens denied any usage and said that Clemens’ wife, Debbie, had used the HGH and that Pettitte must have misunderstood him. At that time, according to the affidavit, “I said, ‘Oh, okay,’ or something to that effect, not because I agreed, but because I wasn’t going to argue with him.” Pettitte then stated that he told his wife about this second conversation as well.
If this were all the evidence that Andy Pettitte would present against his former best friend, it would be terrible for Roger Clemens. But, while virtually everybody who followed the Mitchell Report and the Congressional hearings knows about the affidavit, very few know about the 105-page deposition that Andy Pettitte gave to representatives of the Committee on Government Oversight and Reform four days earlier, on February 4, 2008.
That deposition raises some very interesting points, some of which, in this writer’s opinion, may actually lead to Andy Pettitte helping Roger Clemens’ defense in his upcoming perjury trial.
THE PETTITTE DEPOSITION OF MONDAY, FEBRUARY 4, 2008
We will focus on a few of the statements that Andy Pettitte made, under oath, in his deposition. In the hands of a skilled defense lawyer, it is submitted that these statements may not only help Roger Clemens, but may be enough to cast some reasonable doubt on the government’s case against Roger Clemens.
For example, at page 27, Pettitte discusses what he says were the only two conversations that Clemens and Pettitte had about Clemens alleged HGH usage. In 1999, Pettitte said that Clemens told him that he (Clemens) had used HGH. In 2005, Pettitte said that Clemens told him that he (Clemens) had never used HGH, that it was his wife, Debbie, who used it and that Pettitte must have misunderstood what Clemens had told him.
“Q What was your reaction to what he said?”
“A Well, obviously I was a little confused and flustered. But after that, I was like, well, OBVIOUSLY I MUST HAVE MISUNDERSTOOD HIM.” (emphasis supplied)
Well, that doesn’t seem very definitive, does it?
At page 28,
“Q It sounds like when you – it sounds like your recollection of the conversation you had with him in 1999, you are fairly certain about that, that he told you he used it. Do you think it’s likely that you did misunderstand what Clemens had told you then? Are you saying you just didn’t want to get into a dispute with him about it so you dropped the subject?”
“A I’m saying that I was under the impression that he told me that he had taken it. And when Roger told me that he didn’t take it, and I misunderstood him, I TOOK IT FOR THAT, THAT I MISUNDERSTOOD HIM.” (emphasis supplied)
This certainly seems like it could be helpful to Roger Clemens, doesn’t it?
Current New York defense attorney (and former prosecutor in the Bronx District Attorney’s Office) Joseph Heinzmann believes that the defense lawyers may be able to help Roger Clemens’ defense with this testimony: “Especially when you understand that Andy Pettitte virtually idolizes Roger Clemens and does not want to put his former best friend in jail, these inconsistencies may actually help the Clemens defense. If Andy Pettitte, in 2011, is confused or even unclear as to what Clemens said to him way back in 1999, he may testify that he’s not sure or that it was a long time ago or something along those lines. That may very well give the defense some ammunition for closing arguments to make a case for reasonable doubt.”
“Furthermore, from Pettitte’s perspective, while he wants to testify truthfully to the best of his ability, he may understand that specific, direct testimony that Roger Clemens definitely told me in 1999 that he used HGH could very well contribute to a conviction. This cannot be something that Andy Pettitte really wants to happen to his old friend, Roger Clemens. Pettitte may very well be on the horns of a dilemma with respect to Clemens and trainer Brian McNamee, also a friend of Pettitte’s. But it is Clemens, not McNamee, who is looking at a possible perjury conviction.”
OTHER PETTITTE STATEMENTS IN THE DEPOSITION
While Andy Pettitte admitted that he took HGH on two occasions in 2002, in his initial statements he failed to mention that he also took it on two occasions in 2004. While the committee reps gave him an opportunity to explain why he didn’t tell the whole truth right away (Pettitte said he got the 2004 HGH from his sick dad and didn’t want him to be scrutinized), in the hands of a skilled defense attorney, this could be helpful to Clemens as well.
Attorney Heinzmann: “You probably don’t want to attack a guy like Andy Pettitte, but, in the hands of a skilled cross-examiner, this information could lead to some subtle questioning whereby a juror might think that Andy Pettitte got a break even though he initially lied, so why should Roger Clemens be convicted when it’s not totally clear that he lied? This would have to be carefully done but is a possiblility in the hands of the right defense lawyer.”
Andy Pettitte also has no recollection of a conversation that Brian McNamee testified to in which McNamee told congressional investigators that Pettitte had said that he (Pettitte) was concerned that Clemens was talking to freely about using banned substances. Pettitte simply states, at page 83 of his deposition, that “I don’t remember that conversation.”
Finally (and this is by no means meant to be an exhaustive list), at page 91 of the deposition, the lawyers are trying to rehabilitate Pettitte’s testimony about Clemens telling Pettitte that he (Clemens) did admit HGH usage, Pettitte is asked “Do you – today, as you look back, do you think you misunderstood?”
Andy Pettitte’s answer: “I don’t think I misunderstood him. Just to answer that question for you when it was brought up to me, I don’t think I misunderstood him. I went to Mac [Brian McNamee] immediately after that. But then, 6 years later when he told me that I did misunderstand him, you know, SINCE ‘O5 TO THIS DAY, YOU KNOW, I KIND OF FELT THAT I MIGHT HAVE MISUNDERSTOOD HIM. I’m sure you can understand, you know, where I’m coming from with that conversation.” (emphasis supplied).
While this writer, like most, doesn’t really believe that Roger Clemens did what he did without some kind of illegal drug use, he is innocent until proven guilty. The point of this article is simply to point out that, while many view the testimony of Andy Pettitte to be a key part of the case against Roger Clemens, there are some inconsistencies, ambiguities and a possible memory issue in 2011 for statements that were allegedly made in 1999. Furthermore, if Pettitte plays it down the middle (I think he said it but I’m not sure or something like that), that could help the defense, not the prosecution.
In that situation, even if Roger Clemens is eventually convicted (and the government produced plenty of evidence against Roger Clemens last week separate from Andy Pettitte’s testimony), at least it wouldn’t be because of the testimony of Andy Pettitte.
Fascinating stuff. The trial is scheduled to begin this week in federal district court in Washington, D.C.
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