Andy Pettitte testimony helps Clemens on balance

By Steve Kallas (posted by Rick Morris)

NOTE: This development was forecast by me last July.

A fascinating, but not totally surprising, turn of events at the federal perjury trial of Roger Clemens this morning in Washington, D.C.  While being cross-examined by defense attorney Michael Attanasio on the alleged 1999 or 2000 conversation that Pettitte said he had with Roger Clemens (during which Clemens supposedly admitted he had used HGH), Pettitte made some admissions that can only be described as very helpful to the defense.

WHAT WAS THE MOST IMPORTANT QUESTION OF THE DAY (MAYBE OF THE TRIAL)?

Well, the following is based on reports from Jim Baumbach of Newsday, The Daily News I-Team and an AP/WFAN article.  The most important question of all, in this writer’s opinion, was asked by defense lawyer Attanasio (quote from the AP/WFAN article): 

Question:  “SITTING HERE NOW, YOU’RE 50-50 THAT YOU MISUNDERSTOOD HIM [CLEMENS], IS THAT FAIR?

Andy Pettitte’s answer:  “I’D SAY THAT’S FAIR.”

Wow!

OTHER IMPORTANT THINGS RELATING TO PETTITTE’S TESTIMONY

The above question and answer is pretty much the home run the defense was looking for.  But there were other things relating to Pettitte’s actual testimony that may help the defense.

For example, Jim Baumbach of Newsday refers to a statement Andy Pettitte made when he refers to the conversation in 1999 or 2000 that “I thought I had” with Roger Clemens.

Yikes!

When defense lawyer Attanasio asked Pettitte whether he believes “in his heart and mind” that he might have misunderstood Clemens back in 1999 or 2000, Pettitte responded “Could have.”

Pettitte agreed with defense lawyer Attanasio that he (Pettitte) was closer to Clemens than any other teammate and that he had never seen Clemens either in possession of performance-enhancing drugs or being injected. 

With respect to the later 2005 conversation (when Pettitte asked Clemens what he (Clemens) was going to say if asked about these issues and Clemens told him it was his wife Debbie, not Clemens himself, who had received the injection of HGH), Pettitte acknowledged that his first reaction must have been that he had misunderstood the earlier conversation with Clemens back in 1999 or 2000.

WHERE DID ALL OF THIS COME FROM?

Well, virtually all of this came from the 105-page deposition that Andy Pettitte gave to Congress back on February 4, 2008, four days before his cleaner two-page affidavit of February 8, 2008 (the latter being what most people focused on).

The contents of that deposition of Pettitte, and how his testimony might actually help, as opposed to hurt, Roger Clemens, were discussed at length by this writer back in July 2011 (see “Andy Pettitte Might Get The Save For Roger Clemens, Kallas Remarks, 7/5/11, reprinted yesterday at WFAN.com).

Clearly Michael Attanasio, an excellent defense attorney, was well-aware of the contents of that deposition when he asked his questions of Andy Pettitte this morning.  

WHAT DID JUDGE WALTON THINK OF ALL OF THIS?

Well, the judge certainly seems to be leaning the defense’s way on a number of issues relating to the Pettitte testimony.  For example, (from Jim Baumbach’s in-court account), Judge Walton said (presumably with the jury out of the room) “What we have now, based on Mr. Pettitte’s testimony, is that he’s not sure” what Clemens told him.  A little later, the judge said, “At this time, he [Pettitte] is conflicted.  He doesn’t know what Clemens said to him.”   

The judge also scolded the prosecutor, saying that he was surprised that the prosecutor didn’t go back at Andy Pettitte regarding his 50-50 acknowledgement of Pettitte’s conversation with Roger Clemens back in 1999 or 2000.

Fascinating stuff, no?

WHAT ABOUT REASONABLE DOUBT?

As we discussed in the July 5, 2011, the Pettitte deposition, in the hands of a very good defense lawyer (as is Michael Attanasio), could give rise to testimony that would be helpful to the Clemens defense.  All the defense has to show is “reasonable doubt.”  While much more evidence will come in, it is submitted that only Andy Pettitte’s testimony will be viewed as testimony of someone involved day-to-day with Roger Clemens and with no ax to grind.  Brian McNamee and his baggage, as well as the DNA evidence that was apparently in a beer can in a garage (or a basement) for six years, will be strongly attacked by the defense.

Andy Pettitte’s testimony today will give some great material for a defense lawyer to say in his closing.  If Rusty Hardin, in his folksy kind of way, uses the above Pettitte testimony in the right way, that testimony could go a long way towards creating reasonable doubt and getting Roger Clemens off the hook.

WHAT’S NEXT?

Well, there is a long way to go and many more witnesses to testify.  With respect to Andy Pettitte’s testimony, the defense will file a brief in support of a motion to strike Andy Pettitte’s testimony based on his admissions on cross-examination. If granted, that will lead to the judge having to tell the jury not to consider the testimony of Andy Pettitte (which would, essentially, leave only McNamee and his baggage pointing the finger at Clemens).  If not granted, there is a lot of ammunition for closing arguments on behalf of Roger Clemens.   

Some thought it was pure bluster when Rusty Hardin said, in his opening statement, that “we welcome Andy Pettitte’s testimony.” 

Those who thought that found out this morning that it was the statement of a well-prepared defense team.