First, an Ethics Train Wreck recap, before we get to yesterday’s developments:

The Roger Clemens ethics train wreck officially started rumbling down the tracks in 2008, when Major League Baseball’s Mitchell Report, itself something of a train wreck to begin with, revealed that Roger Clemens’ trainer, a rather shady character named Brian McNamee,  had told the investigative commission that he had injected the pitching great with banned performance-enhancing drugs, or PED’s. In rapid succession there was ethics carnage everywhere. Clemens, under the pretense of inquiring about the health of his former trainer’s child, who was gravely ill, tried to get the trainer to admit he was lying. Congress, absurdly, called a special hearing on the matter. Clemens visited select Congressional offices beforehand, which tainted the objectivity of questioning. The Congressional committee, rather than seeking to illuminate the Clemens dispute or the status of PED’s in baseball, instead decided to take sides, with Republicans defending Clemens (a Bush-supporting Texan) and the Democrats seeking his scalp—facts had nothing to do with it. Clemens, meanwhile, made several dubious statements, and showed his class by telling the world that his wife, not he, was the PED-user in the family. A few months before, Clemens prevailed upon his friend Mike Wallace, then in his late 80’s and semi-retired, to tarnish his reputation as a tough and objective truth-seeker by tossing soft-ball questions to Clemens on CBS, so the pitcher could deny his drug use to a famously skeptical interviewer who was, in fact, thoroughly conflicted.

Clemens ended up being indicted for perjury before Congress. Among the justifications for the prosecution was the Congressional testimony of Clemens friend and colleague Andy Pettite, himself a confessed user of the banned Human Growth Hormone (HGH), that contrary to Clemens’ sworn testimony, Clemens had told his friend in 1999 that he had used HGH. Petite also told Congress that  in 2005 he had another conversation with The Rocket in which Clemens insisted that he had never admitted using HGH.

Along the bumpy rails to yesterday’s testimony by Pettite in the perjury trial, there have been so many near and actual ethical breaches it is easy to lose count. One of Clemens’ law firms continued to represent him and Major League Baseball simultaneously, though they would seem to be adversaries. Clemens’ attorney, Rusty Hardin, was also Pettite’s attorney when the conversations between the two pitchers occurred, yet the judge allowed the clearly conflicted lawyer to stay in the case despite having potential confidential information from Pettite that could be used to impeach his testimony in trial. Prosecutors caused a mistrial in the first attempt at the perjury trial, by either intentionally or incompetently allowing jurors to see a video that they had been explicitly ordered not to show to the jury.

Now the news media, which usually helps ethics train wrecks along, has bought a ticket on this one. Yesterday, after Pettite repeated his testimony, as the prosecution’s star witness, that Clemens had confessed PED use in 1999, defense attorneys elicited from him the other part of his testimony, that Clemens had insisted in 2005 that Pettite misunderstood. Let me turn over the discussion now to two sports bloggers who also happen to be lawyers, as they fume over what happened next: First, here’s NBC’s Craig Calcaterra:

“…I awake this morning to find two outlets — the New York Daily News and Yahoo! — each going with completely inaccurate takes on the Andy Pettitte testimony today.  First the Daily News:

Then Yahoo!:

“He neither backpedaled on nor backed off his prior testimony.  He was entirely consistent.  The Daily News attempts to argue that his testimony differed from an affidavit he offered regarding the 1999 conversation, but that affidavit was not inconsistent with the testimony. It merely left out — for strategic reasons — the part in which Pettitte said in 2008 just as he says now that he thought he misheard Clemens in 1999.

“Les Carpenter’s piece in Yahoo! is way worse.  He is all but saying that Pettitte perjured himself in order to help his friend, Roger Clemens. He says ‘Prosecutors did not expect Pettitte to say the very thing Clemens has maintained all along, that he “misremembers” the earlier conversation,” when in fact they had every reason to expect it given that Pettitte testified to that exact effect four years ago.  He says that Petttitte “suddenly” had doubts about the 1999 conversation, when there was nothing sudden about it. He calls Pettitte’s testimony “a life preserver,” implying that it was unexpected help to Clemens when, in reality, it was merely Pettitte being consistent with prior testimony and the help to Clemens was the unexpected benefit.”

Here is Tamar Chalker:

“We can debate all day whether Clemens lied to Pettitte in 2005 about their earlier conversation and whether he lied to Congress, but let’s save that for another day.  Pettitte’s testimony this week was completely consistent with his prior testimony…In fact, this information is available to the public, which includes the many members of the media who have rushed to write, comment or insinuate that Pettite is flip-flopping or changing his testimony to cover for his old pal Roger”

Read the headlines about Pettite’s testimony today, and the accompanying stories. They state that prosecutors were “shocked” by Pettite’s testimony. They couldn’t have been “shocked,’ unless they were as incompetent and unethical as the reporters. Of course the prosecutors knew about the 2005 conversation, because it was right there in Pettite’s previous testimony. Yet the Washington Post describes Pettite’s re-statement of what was already on the record as a Perry Mason moment, suggesting a similarity to the moment in every “Perry Mason” episode when Raymond Burr’s relentless cross-examination would cause the real murderer to confess on the witness stand, screaming, “ALL RIGHT!!! YES!! I DID IT! I KILLED HER!”, as the unsustecting district attorney looked on, thunderstruck.

That’s not even close to what happened, and it suggests wrongdoing by Pettite, that he admitted his sworn testimony wasn’t true out of a desire to help his friend or because of a failure of nerve. As Calcaterra says, this  “is a clear misrepresentation of legal fact and anyone who maintains it in print should be required to print a retraction.”

I’m sure Craig isn’t holding his breath waiting for that retraction. Why is the reporting on Pettite’s testimony misleading, incompetent, and wrong? It is confirmation bias combined with lack of diligence and a healthy heaping of ignorance, a toxic recipe. The media wants drama, so it manufactured some, or thought it was there when it wasn’t. Competent reporting would have required reporters to check Pettite’s prior testimony, but that’s too much trouble in the 24 hour news cycle. Finally, as is so often the case in news reports, the journalists don’t really understand what they are reporting on.

Kudos to Calcaterra and Chalker, two smart and informed baseball bloggers, for doing the job our mainstream journalists are too incompetent to do: explaining what really happened.

____________________________________

Pointer: Craig Calcaterra

Facts: Craig Calcaterra ( NBC SPORTS)

Sources:

• It’s About The Money, Stupid
• LA Times
• NY Daily New
• Yahoo!
• Washington Post

Graphic: It’s About The Money, Stupid

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.