May 2, 2012, 3:00 PM EDT
Andy Pettitte’s testimony this morning in the Roger Clemens case was pretty bad for the prosecution. He was called to establish one fact — that Clemens once admitted to using PEDs — and he was equivocal on that fact. Pettitte said he wasn’t sure if Clemens ever said that, actually.
That testimony, however, has led to some misleading commentary this afternoon: The beginning of a meme in which Andy Pettitte is being accused, implicitly or otherwise, of sinking the government’s case, flip-flopping or otherwise changing his story.
First one I saw was Jon Heyman. I’d embed his tweet but he blocks me, so here’s the link and here’s what he said:
pettitte finally is misremembering. now suddenly, hes unsure of key hgh conversation with clemens.
Then I saw Richard Justice:
Millions of dollars, thousands of hours, and right in the middle of cross examination, the star witness changes his story. Holy Toledo!
— Richard Justice (@richardjustice) May 2, 2012
Hi, Laura, this is Andy. Honey, I got a little tired at the end and you know maybe changed my story a tad. Hello? Honey, you still there?
— Richard Justice (@richardjustice) May 2, 2012
I’m assuming others will get on the “Andy Pettitte flip-flopped” bandwagon soon. But if they do, they’re wrong. Because Andy Pettitte didn’t change his story. Not one bit.
Pettitte was deposed by the government in 2008. You can read his entire testimony here. The relevant parts of it come on pages 25-28. There Pettitte recounts the two conversations he had about PEDs with Roger Clemens: one in 1999, one in 2005. As he did in court today, he said then that he initially believed Clemens told him in 1999 that he used PEDs. Then in 2005, Clemens said something else: that it was his wife, not Clemens himself, who used.
Obviously, it’s possible that Clemens was lying in 2005. The heat was on PED users by then. He may have wanted to make people think that he never used PEDs at all. That may have been why Clemens said what he said about his wife, and it would not be at all unreasonable for Pettitte to assume in 2005 that Clemens was lying.
But Pettitte didn’t assume that. At least not publicly. Here’s what he told Congress, under oath in 2008, when they asked him what he made of Clemens apparently changing his story:
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.
Q But he had never told you before that his wife had used HGH, that was the first you’d heard of that, is that right?
Q Did you understand that he was saying that as a way or sort of a strategy to handle the press inquiries? I mean, was that the nature of your conversation?
A Not really. The conversation wasn’t very long. That was really the end of the conversation. Just when he said that, I was like, oh, just kind of walked out. I wasn’t going to argue with him over it. You know.
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 then when Roger told me that he didn’t take it, and I misunderstood him, I took it for that, that I misunderstood him.
In light of that previous testimony — that Pettitte, in his own mind, concluded that he misunderstood Roger Clemens in 1999 — there had to be zero expectation that he would say with any degree of certainty this morning that Clemens told him he used PEDs in 1999. For him to do so would require him to contradict his previously-sworn testimony.
And he did not contradict his previous testimony. It was totally consistent. And 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.
The prosecution knew this and foolishly decided to call Petitte anyway, in an attempt to prove more than they really could. The defense knew this and exploited it deftly, asking Pettitte how unsure he was, leading to that “less than 50/50” comment which was both an obvious way to go for anyone with a day’s worth of trial experience and was an absolute killer in practice since “less than 50/50” = “reasonable doubt” to just about any juror. In short, it was awful lawyering by the government and a freaking slam dunk for the defense.
But the press knew it too. Or should have. And to the extent any member of the press now claims that the Clemens trial was sunk because Andy Pettitte “changed his story” or is “suddenly unsure” of key facts, they are dead wrong.
And not only are they 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.
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