A Lawyer’s Perspective on Andy Pettitte’s Testimony

I don’t often admit this – and I hope you won’t hold it against me – but in “real” life I am a lawyer. So, while the baseball fan in me has wanted to avoid anything and everything dealing with the Roger Clemens trial, for many of the same reasons William voiced earlier, my inner law nerd can’t help but find it a bit fascinating. With Andy Pettitte testifying over the last two days, my attention to the case has heightened and (unsurprisingly) I have found the bulk of the media’s commentary to be far more useless than Pettitte’s testimony. In fact, if anyone is to blame for Pettitte’s testimony being a far cry from the nail in Roger Clemens’ coffin, it is the prosecution for calling him – but more on that in a second.

During law school I had the pleasure of working for the Public Defender’s office in Cleveland. I loved working there and met some amazing people who taught me quite a bit more than many of my law professors. One of the first things I learned, however, is that following legal proceedings in the media can be incredibly exasperating for those of us who know what is actually going on. This is doubly true when you deal with criminal cases, where the media does little to preserve the idea of “innocent until proven guilty.” It used to drive me crazy reading articles about cases I was working on that were so woefully misguided or biased, but I understood that I was privy to information that the general public and the media did not have access to, due to my job and my education. Reading many of the reactions to Pettitte’s testimony has given me some flashbacks to those frustrations.

When a case like the Roger Clemens’ perjury trial comes around it is important to weed out a lot of the articles written by sports reporters with no legal background. Some, through no fault of their own, are in over their heads trying to cover the game of law instead of the game of baseball. Make no mistake – litigation is definitely a game and it is not kind to rookies who are still trying to get a handle on the intricacies involved. Others are merely looking for the most scandalous headline to sell their papers or get more traffic to their websites, often considering facts as optional or irrelevant Luckily, there seem to be more and more lawyers writing about sports these days (it keeps us sane amidst either the great insanity or boredom that surround many of us – depending on our practices). Craig Calcaterra is one such person, and has a great post about Andy Pettitte’s testimony today.

Calcaterra points out very clearly (and with the appropriate attached legal documentation one would expect from competent counsel) that if Roger Clemens is found innocent it is not because his old pal Andy Pettitte lied or conveniently forgot about a decades old conversation.  In fact, it is because the prosecution either 1) did not do their homework or 2) thought that bringing in a close teammate of Clemens, who has admitted to using HGH on two occasions, would outweigh his own testimony.  I suspect the prosecution’s decision to use Pettitte’s testimony had more to do with the latter of these two options.  I hope that is true, after all, as I would hate to think that they have wasted our tax money by being so incompetent at their jobs that they failed to know what one of their key witnesses would say.  They are also in a tough spot, as Brian McNamee has proven to be far from a reliable character and the defense should have plenty of ammunition to use when he takes the stand.

During his 2008 Congressional testimony, Pettitte stated that he had thought Clemens admitted to using HGH during a conversation they had in 1999.  He also testified that in 2005 he had another conversation with Clemens where Roger stated that Andy misunderstood him in 1999 and that it had actually been Clemens’ wife who had used HGH.  We can debate all day whether Clemens lied to Pettitte in 2005 about their earlier conversation and whether he lied to Congress, but let’s save that for another day.  Pettitte’s testimony this week was completely consistent with his prior testimony, and as Calcaterra states, “it was freely available to the prosecution and the defense for the past four years. They all knew that Pettitte was going to say that he was unsure about Clemens’ 1999 comments after he heard what he heard in 2005.”

In fact, this information is available to the public, which includes the many members of the media who have rushed to write, comment or insinuate that Pettitte is flip-flopping or changing his testimony to cover for his old pal Roger.  Take the NY Daily News’ blatantly wrong headline “Andy Pettitte backs off prior testimony on Roger Clemens’ HGH use, admits it’s ’50-50′ that he may have misunderstood Rocket.”  The article goes on to state that Andy contradicted his 2008 testimony – nope, sorry, try again Daily News!

Yahoo! Sports’ headline rivaled the Daily News, however, as it states that “Andy Pettitte helps old pal Roger Clemens’ steroid case by backpedaling on the witness stand.”  In an article that focused far more on how often Pettitte did not look at Clemens during his testimony, Les Carpenter doesn’t so much insinuate that Pettitte just committed perjury for his friend, as he just barely avoids stating it outright (let’s hope he at least knows a thing or two about libel).  In fact, Mr. Carpenter succeeds most at showing his absolute naivete of both the law and the facts surrounding this exact case.

I probably don’t need to say this, but Jon Heyman should never be trusted for any legal analysis (and should probably not be trusted for baseball analysis).  His tweet about Pettitte “suddenly misremembering” his conversation with Clemens is beyond ridiculous, but really, who is surprised?  There have been other similarly misleading headlines and ignorant tweets – and I would assume there will be more.  After all, everyone loves a scandal.  I think Calcaterra summed it up best when he points out that people who do this are “not only…dead wrong, but they’re doing a grave disservice to Andy Pettitte. The only man in this whole case who has been honest and consistent all along.”

Now enough of this, let’s watch some baseball!

About Tamar Chalker

Tamar has written for IIATMS since July 2009, having started off writing game recaps before shifting to the minor leagues. Born in Connecticut and having lived all over the country and in South Korea, Tamar now finds herself "temporarily misplaced" in New Hampshire. Please send help - I can pay you in maple syrup.

17 thoughts on “A Lawyer’s Perspective on Andy Pettitte’s Testimony

  1. Great perspective, Tamar. Thanks for writing it. And I still like you. Heh.

  2. Thanks! I didn’t anticipate it being as long as it is when i started writing it – one of the side effects of being an attorney i suppose….

  3. Brilliant. Thanks – all I'd seen today was the "backpedaling" and lying by Petite – and honestly, I'd lost a bit of respect for him, assuming that reporters wouldn't lie to me and he indeed DID change his testimony.

    Thanks for setting things straight. Can MSM get ANYTHING right?

    • I guess Roger Clemens lying isn't news so they decided it would make a bigger splash is Andy was the liar. Some of the stuff I have read has been so bad I can't decide whether the writers are that ignorant or that slimy.

  4. Like Tamar, I assumed the media wasn't outright lying when they reported Pettite flip-flopped, but this does raise a question– if they knew that's what Pettitte was going to say, why would the prosecutors call him? How does saying he's "50-50" about Clemens saying he used HGH help? That sounds like something the jurors would have to dismiss, because of Pettitte's own uncertainty.

    • I think it really comes down to the prosecution feeling like they had to go forward with the case, but knowing that their key witness (Brian McNamee) may be the only person with at least as many (if not more) questions about his character and veracity than Roger Clemens. Clemens has superstar status so that can always be a problem for the prosecution in a case like this.

      Pettitte is one of the few people named in the Mitchell report who came out relatively unscathed and a lot of people attribute that to his apparent honesty about the situation. My best guess is that the prosecution hoped that Pettitte's reputation for being an honest and religious guy will play well to the jury regardless of his uncertainty about what was said and that the jurors will read it more as Roger Clemens changing his own story. If this were a civil case where the standard of proof is not "beyond a reasonable doubt" (the highest standard of proof) Pettitte's testimony may have been enough.

  5. Mr. Chalker, You said you are a lawyer, I'm guessing criminal law? Anyway, great story. I have been following the case and, in my opinion, you are absolutely right on your take on the coverage. As a journalist for the U.S. Navy, working in Public Affairs, it does not surprise me anymore at what length commercial journalist go to put a spin on things. On a side note, Can you or do you know someone who you can recommend that can provide some, unfortunately, for my friend, free legal advice in regards to divorce and child support? He, and I, are both big Yankee fans, if that helps. We both read the IIATMS regularly, but he was afraid to write this. Again, great story. Thanks.

    • U.S. Navy Public Affairs, that must be very interesting! Sorry about your friend's situation. I am in Vermont so the people I know are up here, but the family court webpages always have the necessary forms to fill out for divorce/child support. If there is potential for any problems now or down the road, however, especially with kids involved, it is worth finding a lawyer. Sorry I can't be more helpful.

      • Mr. Chalker, Sorry, I failed to mention that we are both stationed in Japan at the moment. He is stuck here while his soon-to-be ex and child are back in the states. Navy won't let him go back to the states to contest and, even if they did, he can't afford a lawyer. I really feel for him as I had a similar experience back in the day. Told him I would try to help. I am sorry for bothering you with this and this isn't really the appropriate avenue I would normally have taken to approach someone. He and I had just been talking about it right before I went online to catch up on IIATMS. I saw your story and a little nightlight went off in my head. Thanks just the same. Most respectfully, DJ JD

  6. Tamar now I like you more even though you are a lawyer:) nice analysis of the trial and thanks for clearing up the media garbage we keep hearing about this trial..wish it would be over.

    • Thanks! It was nice to be able to respond to the ridiculousness of the media for once, unlike when I am reading stuff about cases I have worked on.

  7. What amazes me about this case is the apparent incompetence of the prosecution team. First, they cause a mistrial by inserting excluded "evidence" into their opening statement during the first trial, now they put a witness on the stand without a clear understanding of what his testimony would be. I worked as a paralegal in a District Attorney's office for a number of years. One of the things the ADAs always said was, witness prep is everything. You should never be surprised by what someone YOU called as a witness says on the stand. Of course, some witnesses will change their testimony without a prosecutor's knowledge, or get flustered and contadict themselves, but that should rarely happen.

  8. Good analysis, Tamar. As an old lawyer, now retired, I can say from experience that the press almost always gets it wrong when it comes to covering legal matters. Some of this is not the reporter's fault, trials can be confusing to onlookers, but much of it comes from need to sensationalize. In this case, the bad reporting on Andy Pettite seems to be willful. I followed the congressional investigation and Pettite's testimony before congress rather sporadically but even with that I remember his testimony being equivocal. During the parts that I did follow I remember asking myself why congress thought it important to drag sports personalities in front of the cameras to question them about past drug use. What purpose did it serve in enacting legislation on steroid use? Everybody knew it was a problem so just agree that it is a problem and pass a law. There was no doubt that some or maybe all of the athletes were going to lie when asked about steroids, most of us would unless we had been caught red-handed. Congress was grandstanding then and the prosecution is grandstanding now, and the press is out there leading the way.

  9. Great read. Most of us are likely reading this because we're baseball fans. This a relatively low-stakes issue in the grand scheme of things (I'll reference Tamar's line regarding wasting tax dollars), and I am not rooting for one side or the other in this case. However, Tamar's analysis of the headlines and lazy reporting really illustrates the media's (I'm not just referring to the tabloids) general lean to sensationalism, as opposed to factual reporting. I'm 30-something, and ever since I can remember it's been cable news battling for ratings, and magazine's battling for circulation. I wonder if it's always been about the money (seriously, no pun intended) or if we've changed that much as a society, moving away from the principles that journalist always laud as the bedrock of their profession. Sound bites and headlines over facts and critical thinking.

  10. I may be missing something…but didn't Pettitte say in his deposition that his former teammate, Clemens, also acknowledged using HGH. " I remember a conversation in 1999 where Roger had
    told me that he had taken HGH." He then goes on to clearly state that he told McNamee that Clemens told him he took HGH, and Clemens said McNamee provided it to him. My memory is probably as bad as Pettitte's, but it seems like he definitely waffled on this, as it now changed to 50/50. The reporters may be out of line with their comments, but honestly…if you read the deposition, it seems very clear what was said by Clemens and heard by Pettitte back then.