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Friday, February 4, 2011

Is Andy Pettitte A Criminal?

The noted New York Yankees pitcher Andy Pettitte may be retiring because he may be an unindicted co-conspirator in the baseball steroid scandal that the federal government has deemed to be criminal.

Pettitte will announce his baseball retirement later today. 

Pettitte is scheduled to be a witness against Roger Clemens in his upcoming criminal trial on perjury charges.  Pettitte and Clemens were close friends, and for Pettitte to testify as a government witness against his friend strongly suggests that Pettitte agreed to testify -- and perhaps even to retire from baseball -- as part of a deal to avoid federal prosecution on criminal charges. 

It is rare for a man to testify -- except under great duress -- against his friend.  There has to be a strong incentive to do this (read: being threatened with going to jail) and it's not just the process of "coming clean." It is very likely that Pettitte has been told that he must testify against Clemens in order to avoid being prosecuted.  For what, I cannot speculate.  I merely connect the dots and draw some inferences and opinions.

Turn the analysis around.  If you were innocent, and had a good chance of establishing your innocence (which is the practical truth, in my opinion, despite the official legal standard that it is the government with the burden of proof to establish your guilt beyond a reasonable doubt), what reason would you ever have to testify against your friend?

Absolutely none.  Being innocent gives you the power to tell the authorities to go away.  (I'm being polite.)

Being guilty -- in one's heart of hearts -- subjects you to feeling immense pressure.  It gives the government leverage over you, and I believe that is the case here, that the government "has the goods" on Pettitte and thus can pressure him to sing their song.

Should Pettitte testify at Clemens' trial, any such deal with the government for immunity from prosecution, and the allegedly crimnal acts (if any) Pettittee would have to admit to having committed, will be revealed at trial. 

The issue of whether any of these acts -- whether it's the use or transport of performance-enhancing substances or other transgressions -- should rightfully be considered criminal by the government is another story altogether.  I'll refer readers to the excellent 2009 Harvey Silverglate book, "Three Felonies a Day."

Eric Dixon is a New York lawyer who handles investigative matters, litigation stress counseling, sensitive legal matters and crisis management for individual, business and political clients.  He may be reached at edixon@NYBusinessCounsel.com and by phone at 917-696-2442.(  

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