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Andy Pettitte to be deposed in Brian McNamee’s defamation suit against Roger Clemens

Sep 19, 2013, 3:00 PM EDT

Former Roger Clemens Teammate Andy Pettitte Appears At His Perjury Trial Getty Images

What, you thought this ended last year? Ha! Justice can move slowly in the criminal justice system, but it crawls like an injured sloth in the civil justice system. And that’s the system through which Roger Clemens’ former trainer — Brian McNamme — finds himself as he sues Clemens for defamation arising out of the events of early 2008.

You remember early 2008, don’t you? The Mitchell Report came out and Roger Clemens was accused as a user. Rather than shrug and have it be the end of things like it was for Andy Pettitte and others, Clemens launched a bizarre and ill-advised media campaign against his chief accuser, Brian McNamee, during which he called McNamee all manner of not nice things, with “liar” being the least of ‘em. This was all occasioned by weird press conferences and appearances on “60 Minutes” and flawed power point presentations and taped phone calls and congressional testimony and, ultimately, a perjury trial which Clemens escaped without criminal conviction but without much of his reputation left intact.

Pettitte has been key to all of this, of course. Pettitte told McNamee that Clemens said he used HGH. McNamee told Congress and prosecutors that Pettitte said this. Then Pettitte walked into a criminal trial and created all of the reasonable doubt Clemens needed when he said he was only “50/50″ as to whether Clemens ever admitted anything. I’m sure the government was pleased with all of that. Of course, he didn’t exactly change his testimony — everyone said he did but he didn’t. Whatever you think of that, though, his testimony made life kinda hard for everyone.

Despite all of this, lawyers are still willing to call him to take an oath about all of this. He could testify as early as next week. I’ll be curious to hear if he is any more sure of Clemens’ statements now than he was last year or five years ago.

No matter what happens here, I’m still trying to figure out how Brian McNamee proves damages out of all of this. Irrespective of who was telling the truth and who was lying (for the record I figure Clemens was lying and McNamee telling the truth), how does a person show reputation damages via defamation when the only reason anyone knows who he is is because he was listed in the Mitchell Report as one of the most famous purveyors of steroids in the country? A drug dealer who also wrote an article in the New York times lying his butt off about steroids. A lying, op-ed writing drug dealer who also was tied up in an alleged date-rate-drug sexual assault in a pool about which he later lied to police? How does that damages case even look?

“Ladies and gentlemen of the jury; my client was once thought of as a lying, drug dealing perv. Then along came Roger Clemens, who told the whole world that my client had never given him drugs! He’s been ruined by this! Please, see to it that he compensated for the loss of his good name.”

In short: even if he proves the lie, how does he prove the reputation damages?

  1. Old Gator - Sep 19, 2013 at 3:08 PM

    You chose the wrong friends. This time it will cost you.
    -Belloq

    • apkyletexas - Sep 19, 2013 at 3:21 PM

      I told you to ghost me.
      -Riddick

    • historiophiliac - Sep 19, 2013 at 4:35 PM

      I’m not bad; I’m just drawn that way.

      — Jessica Rabbit

  2. cur68 - Sep 19, 2013 at 3:19 PM

    I hate snakes
    -Dr. Henry Jones

    • chacochicken - Sep 19, 2013 at 3:23 PM

      You call him Doctor Jones, doll!
      -Short Round

      • Old Gator - Sep 19, 2013 at 5:41 PM

        Would he love living in the Everglades or what?
        – OG

  3. danindelray - Sep 19, 2013 at 3:30 PM

    Craig’s claim that Pettitte did not change his testimony is a contemptible lie, offered with nothing but page views and comments in mind.

    The facts are that Pettitte, to avoid giving public testimony against his ‘friend’, provided to Congress a SIGNED AFFIDAVIT attesting to the FACT that Clemens told him he used HGH, and Pettittes WIFE AFFIRMED the fact that he came home and told her what he was told.

    NOWHERE in the affidavit did he say he thought Clemens may or may have not said these things. NOWHERE in the affidavit did he say that it was 50/50 that he heard him say these things.

    HE STATED WITHOUT ANY EQUIVOCATION THAT CLEMENS SAID HE USED HGH.

    Just because no investigator gave him the opportunity to prevaricate and hem and haw doesn’t mean that Pettitte did NOT IN FACT change the meaning of his testimony at the criminal trial from what he swore, under oath, to Congress.

    • rbj1 - Sep 19, 2013 at 3:56 PM

      Actually at trial Andy did repeat his testimony. Then Roger’s lawyer asked if he could have misheard/misunderstood what Roger said. Andy then allowed for that possibility.

      Anyway, Brian’s credibility got shredded at that trial. Who keeps a syringe in a soda can for years just in case someone tries to blackmail you? And it’s not even Roger’s DNA.

    • Craig Calcaterra - Sep 19, 2013 at 4:10 PM

      A “contemptible lie?” Really? You must have reading comprehension problems.

      Before congress, under oath, and subject to cross-examinaton in 2008 he testified thusly:

      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.
      ———————————-
      HE SPECIFICALLY SAID HE MISUNDERSTOOD CLEMENS. He was of the impression Clemens said he used, but when corrected by Clemens later, he became convinced that he misunderstood the initial comments.

      At trial he said he was sill uncertain. “50/50″ Please explain how that represents a change. If he was uncertain before and uncertain now, where is the change?

      You may think Pettitte was lying at some point. But his sworn testimony was not inconsistent.

      • historiophiliac - Sep 19, 2013 at 4:37 PM

        Or, is he admitting that Clemens used the Jedi mind trick on him?

      • nbjays - Sep 19, 2013 at 4:48 PM

        Jedi mind trick? Historio, Clemens is no Jedi… Sith maybe, but not a Jedi.

      • danindelray - Sep 19, 2013 at 4:49 PM

        ‘Contemptible’ Craig because you delight in being contradictory to the general opinion of fans when it comes to PED and related subjects, all in the search for more comments and page views. Its both contemptible and pathetic.

        Your assertions about what Pettitte said are also dishonest and incomplete. Pettitte also testified that arguing with Roger over something is pointless and that it is best to just back off and agree with him when he tells you you are wrong about something.

        In other words, in Roger’s world, when he says the sky is green, it is best to agree with him.

        This does not constitute true uncertainty. It reflects the reality of what is required of Clemens’ friends.

        If there was true uncertainty about his recollections, why was Pettitte allowed to avoid public testimony by signing that affidavit? WHY would Pettitte sign the affidavit, which allowed for no uncertainty as to the content of that conversation, if there was such doubt in his mind as to whether it even occurred????

      • theskinsman - Sep 20, 2013 at 5:49 AM

        Wasn’t HGH Andy 2nd runner-up in the “Miss Remembered pageant that year? I’m hoping he and his pal Roidger are made to look like the scum they are yet again.

    • jwbiii - Sep 19, 2013 at 4:20 PM

      From Pettitte’s Congressional depostion:

      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.

    • apkyletexas - Sep 19, 2013 at 5:30 PM

      @danildelray – you must be right – because you use A LOT OF CAPITAL LETTERS.

      BRAVO.

      Now – go to law school, pass the Bar exam, and practice law for 10+ years like Craig, and then let us know your opinion of whether or not Pettitte changed his tune.

      • dlf9 - Sep 19, 2013 at 6:20 PM

        Well I went to law school, passed two bar exams (plus waived into a third), and practiced for 15+ years before coming to my senses, so perhaps I can opine under these rules.

        Pettitte’s affidavit did not equivocate, but his testimony before Congress (as well as in trial) did. @danildelray is focused on the first of these events and is factually – if in a very limited fashion – correct.

        What he misses, unfortunately, in his well capitalized statements, is that an affidavit, while a sworn statement is not “the truth, the WHOLE TRUTH, and nothing but the truth.” Instead it is a partial set of facts relevant to the matter attested to. Further it is not subject to cross examination. And in the vast majority of times the affidavit is the words of the attorney drafting it and not the person executing it. The prosecutor who (most likely) drafted it cannot knowingly put in incorrect facts, but there is no requirement that they include exculpatory information.

        The really funny part here is that @danil complains that Calcaterra Esquire is looking for page views. That is like complaining that Ford wants people to drive their cars or Bulleit wants people to drink their yummy Rye.

      • apkyletexas - Sep 19, 2013 at 11:30 PM

        @dlf9 – “Pettitte’s affidavit did not equivocate, but his testimony before Congress (as well as in trial) did”.

        The affidavit was signed by Pettite on Feb. 8, 2008, 4 days AFTER he was deposed by Congressional investigators (Feb. 4, 2008).

        On Feb. 4th, Pettite did equivocate in deposition: “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.”

        Somehow Congressional Investigators or his lawyers distilled his statements down to the more definitive sounding words that came out in the affidavit.

        But to imply that the affidavit came first, or should be relied on as the primary source when the deposition transcript from 4 days earlier is readily available, is a bit misleading.

        Also, to imply that Calcaterra is printing this now in order to, like Ford Motor Co., ring the cash registers is also misleading. This is a baseball news story that all the national outlets are going to be writing about. In fact, it would have been more remarkable if Craig had not run the story.

      • dlf9 - Sep 20, 2013 at 9:18 AM

        apky ~ Sorry, I did not mean to imply that the written affidavit happened before the oral testimony (the word “first” was referring to my list rather than a chronological order), but I can see how you would have read that into what I wrote.

        Regarding the last point you make above, sure it is a baseball story and, as one with legal implications, is right in CC’s wheel-house. But it is also the way he rings the cash register. (Reminds me of a Robert Heinlein book, but never mind …) And I applaud him for finding ways of doing so that do not involve the active practice of law.

  4. jss1330 - Sep 19, 2013 at 3:39 PM

    I thought Pettitte’s testimony wasn’t allowed because it was hearsay. Not whether it was true or false.

    • Craig Calcaterra - Sep 19, 2013 at 4:22 PM

      No, it was allowed as to what Clemens told him (out of court statements of a party to the case are OK). It was not allowed as to what his wife told him or what his wife said.

      • dlf9 - Sep 19, 2013 at 6:10 PM

        Also, Andy’s wife’s testimony about what Andy told her about the conversation was excluded (properly so as it was clearly hearsay). That was what caused the first mistrial when the prosecutor showed a slide in the presence of the jury with her statements included after a pre-trial motion in limine excluded that evidence

      • jss1330 - Sep 19, 2013 at 10:20 PM

        Thank you, I remembered some weirdness but not the exact legal details.

  5. thebuzzonny - Sep 19, 2013 at 4:09 PM

    “Just when I think i’m out……They pull me back in”

  6. DelawarePhilliesFan - Sep 19, 2013 at 4:33 PM

    I’m no lawyer….but as for the damages, it seems ot me that no one on the face of the earth would hire this guy again. Is that not damages? Granted, the counter to that would be “No will hire you because you are a drug dealer, not because we publicized that”. Still it seems to me that there are plenty of slimy trainers fully employed, and MacNamee will claim he otherwise wold have been one had it not been for Clemens full court press. I dunno….

    Maybe he just figures a win is a win, and no will pay attention to the $1 reward. Somehow I bet Petite gets even more sympathy out of this

  7. byjiminy - Sep 19, 2013 at 4:34 PM

    I’m going to go out on a limb here and predict that Pettite will say he can’t recall exactly what Clemens told him. Anyone want to take the other side of that bet?

    • nbjays - Sep 19, 2013 at 4:50 PM

      Even Pete Rose wouldn’t take you up on that bet, Jiminy.

  8. jt2663 - Sep 19, 2013 at 8:19 PM

    Mcanamee has lost millions in HGH business since Clemen’s comments.

  9. pjmarn6 - Sep 19, 2013 at 9:44 PM

    Is everyone saying that King Kong couldn’t make it as a lawyer and is trying to make it as a biased sports writer?

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