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Andy Pettitte should NOT get the blame if Clemens walks

May 2, 2012, 3:00 PM EDT

Andy Pettitte

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.#oy

Then I saw Richard Justice:

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?

A Yes.

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.

  1. thesixersbench - May 2, 2012 at 3:05 PM

    Great article, Craig. Well done.

    • seeinred87 - May 2, 2012 at 3:56 PM

      Agreed. I love me some legal analysis mixed in with my baseball coverage. Good stuff.

      • krbtx - May 2, 2012 at 4:12 PM

        Clemens counsel stepped their game up and the prosecution overreached…clearly the prosecution didnt realize prep Andy or appreciate the fact that Andy is a feeble minded east Texan…well, that and Clemens used a Jedi mind trick on Pettitte…

        Clemens: “Andy, you misremembered, I did not take HGH”

        Pettitte: “Ok, I misunderstood”

        Clemens: “NO!, YOU MISREMEMBERED!”

        Pettitte: “Yes, I misremembered”

      • krbtx - May 2, 2012 at 4:12 PM

        Clemens counsel stepped their game up and the prosecution overreached…clearly the prosecution didnt prep Andy or appreciate the fact that Andy is a feeble minded east Texan…well, that and Clemens used a Jedi mind trick on Pettitte…

        Clemens: “Andy, you misremembered, I did not take HGH”

        Pettitte: “Ok, I misunderstood”

        Clemens: “NO!, YOU MISREMEMBERED!”

        Pettitte: “Yes, I misremembered”

  2. Jason @ IIATMS - May 2, 2012 at 3:12 PM

    I love when you lawyer up, Shyster.

    • Craig Calcaterra - May 2, 2012 at 3:15 PM

      It’s like flexing old, unused muscles.

      • phisticuffs - May 2, 2012 at 3:26 PM

        Old, unused muscles are an occupational hazard for both bloggers and lawyers.

      • anxovies - May 3, 2012 at 2:04 PM

        I totally understand. I too flexed those muscles after 5 years of retirement and concluded that the prosecution’s case is smoke and mirrors mixed in with a lot of hope. And Rusty, if you see this feel free to use it in closing.

      • anxovies - May 3, 2012 at 2:11 PM

        From the Deadspin article I guess my info is out of date and Mike Attanasio is the trial lawyer in the Clemens case. You can use it too, Mike.

  3. okwhitefalcon - May 2, 2012 at 3:16 PM

    And Braun didn’t get off on a loophole, right Craig?

    • paperlions - May 2, 2012 at 3:54 PM

      Actually, we don’t know why because an official written decision has yet to be published….and most of the rumors likely are wrong (as they usually are).

      In any case, a loophole is not the same as MLB not following its own protocol for the handing of samples.

      • okwhitefalcon - May 2, 2012 at 4:06 PM

        And with the news last week we may never see the abitrators written explanation and Braun playing “the real story” card then subsequently not telling “the real story” his case will go down much like the Clemens case with the Feds.

        Screwed up.

      • paperlions - May 2, 2012 at 4:23 PM

        Agreed. It is screwed up….but there is this…..NO ONE SHOULD HAVE EVER KNOWN ABOUT THE TEST RESULT OR THE APPEAL UNTIL AND IF THE SUSPENSION BECAME OFFICIAL.

        MLB really needs to get it’s shit together and stop leaking private information before I start to believe anything they say publicly…otherwise, it all feels like calculated information leaks for PR purposes.

  4. somekat - May 2, 2012 at 3:22 PM

    lol, yeah, he didn’t change his story at all

    and benedict arnold never changed sides either

    • baseballisboring - May 2, 2012 at 4:16 PM

      You should slap yourself in the cheek bone for equating those two things.

      • somekat - May 2, 2012 at 4:32 PM

        comparing and equating are not the same thing. Please don’t use words you don’t understand

  5. okwhitefalcon - May 2, 2012 at 3:35 PM

    Andy Pettitte is the new Frank Pentangeli.

    Imagine the prosecutions faces when Clemens walked in with Pettitte’s brother this morning…

  6. phukyouk - May 2, 2012 at 3:37 PM

    The next time i see Andy’s name on this i hope its followed by “… starts for the Yankees tonight”

    • jwbiii - May 2, 2012 at 4:48 PM

      News of a good outing at “Scranton” in a few days would be ok.

  7. stlouis1baseball - May 2, 2012 at 3:42 PM

    Well done Craig. I guess I sorta’ forgot that Jon Heyman blocks you.
    You should take that as a freaking compliment/blessing. The dude grates on my nerves like no other.

  8. mcsnide - May 2, 2012 at 3:47 PM

    Why would they have put him on the stand in the first place? Did they think Roger’s legal team was too stupid to look at the previous depositions and testimony? I don’t understand what’s going on here.

  9. evanhartford - May 2, 2012 at 4:07 PM

    I’m surprised that others would accuse Pettite of flip-flopping when his previous testimony is pretty black and white. And remembering conversations that occurred a decade ago would be difficult even for someone with an exception memory.

    Interesting but irrelevant. I doubt it will change anyone’s opinion of Clemens…

  10. kevinbnyc - May 2, 2012 at 4:10 PM

    More importantly, why was Roger’s wife using HGH?

    • nategearhart - May 2, 2012 at 5:07 PM

      That’s not important at all, and it’s none of our damn business.

  11. kevinbnyc - May 2, 2012 at 4:12 PM

    More importantly, why was Roger’s wife using HGH??

  12. jdvalk - May 2, 2012 at 4:19 PM

    Thank you for going after the truth rather than a ‘gotcha’ headline that others have gone after regardless of the facts.

  13. randygnyc - May 2, 2012 at 4:30 PM

    Craig, you are 100% correct here. The prosecution was either foolish or incompetent to think Pettitte would contradict his own testimony today. Pettitte doesn’t misremember.

  14. AlohaMrHand - May 2, 2012 at 5:23 PM

    I stopped caring about this long ago.The Feds badly want to “nail”Clemons over something that most MLB players were doing during that period that baseball KNEW what was happening and looked the other way for the sake of revenue.Why isn’t Selig or Fehr in trial is the real question.And I’m thrilled to see my tax money going to fund this dog and pony show.

    • anxovies - May 3, 2012 at 2:17 PM

      Agreed. What compelling federal interest is being served by this prosecution? Protecting the integrity of congressional investigations, I guess. But asking Clemens a question about doing steroids in front of the cameras is like asking somebody if he has a mistress when his wife is in the room. You know he’s going to lie.

  15. metalhead65 - May 2, 2012 at 8:03 PM

    way to go craig keep sticking up for the cheaters and the ones who orotect them. they are innocent no matter what evidence they have on them right?

    • Craig Calcaterra - May 2, 2012 at 8:05 PM

      Actually, the entire point of this post is to show that what the prosecutors — and you, I surmise — believe to be evidence is anything but.

      But never mind the fact that a man just testified in open court in the exact opposite way you believed he should have. Go ahead and still claim that all of the evidence is on your side.

      • anxovies - May 3, 2012 at 2:26 PM

        Now they can’t even pull the old “were you lying then or are you lying noy?” trick.

    • ezthinking - May 2, 2012 at 9:34 PM

      Move out of the US and you can find your kind of justice.

      Lockem’ up throw away the key. No need for a trial.

      You would likely get some time in the stoney lonesome for many of your posts in, oh, about most countries in the world. This system is as good as it gets.

  16. dlf9 - May 2, 2012 at 8:45 PM

    “Andy Pettitte[,] the only man in this whole case who has been honest and consistent all along.” – C. Calcaterra.

    Not quite. When the LA Times story came out, Pettitte denied ever using PEDs. Then when he was named in the Mitchell report, he admitted using hGH but emphasize that it was only once. Then when he was deposed as part of Congress’ investigation, he said he had used in two different years. He has been consistent while under oath, but far from it before then. That makes me question the honesty of all of his statements. To again quote Calcaterra Esquite, “quit erecting statutes of living people.”

    • dlf9 - May 2, 2012 at 8:54 PM

      Dear Craig, Aaron and the rest of the NBC crew, Please add an edit function so I can avoid my usual typos. Sincerely yours, dlf9.

  17. tuftsb - May 3, 2012 at 10:59 AM

    Two points:

    Misremembered is a word, and its use is not evidence of some hick Texans destroying the English language. http://www.memidex.com/misremembered

    Second, I just saw AG Eric Holder on TV talking about the Clemens trial. His quote “(t)he charges there are serious ones. It’s about testifying falsely before Congress”, had me rolling on the floor.

    “Fast and Furious” refers to Clemens’ style of pitching and Holder’s obfuscation in his own Congressional appearances regarding a failed and deadly sting operation.

  18. bos30 - May 6, 2012 at 10:22 PM

    Thanks, Craig. You are 100% correct. The prosecutors had to know that Pettitte had already said he might have misunderstood Clemens back in 2008 because an attorney would review a potential witness’ prior deposition. Why they did not try to defuse it by bringing it up on direct I will never understand. By letting the defense do it first they made it look like some big bombshell revelation. Just a incredibly stupid move by the prosecution. Personally with what Pettitte said in 2008 about misunderstanding Clemens I don’t even know why they bothered having him testify about that 1999/2000 conversation. They should have just limited Pettitte to talking about who gave B12 shots within the Yankees organization. That’s not much value to their case but it adds a little something.

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