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Critical Manning witness was never questioned under oath


As more evidence is dredged up regarding the 1996 incident involving Peyton Manning and Jamie Naughright, one key reality has become clear: The only witness to the incident, Malcolm Saxon, was never questioned under oath.

Both Manning and Naughright gave hundreds of pages of deposition testimony in connection with the defamation lawsuit she filed against Peyton Manning and others in 2002. Amazingly, Saxon was questioned under oath by neither side.

Saxon’s involvement in the defamation lawsuit happened in two other ways. Saxon signed an affidavit, and he sent a letter sent to Peyton Manning regarding the incident. The circumstances and the content of both submissions cried out for Manning’s lawyers to question him in a deposition setting. For whatever reason, they didn’t.

This is by no means an “attack” on Malcolm Saxon. It’s merely a recognition of the things a reasonably prudent lawyer should do when defending a client in a case of this nature. With the 1996 incident directly relevant to the 2002 defamation lawsuit, the only other person who witnessed the 1996 incident (other than Jamie Naughright and Peyton Manning) becomes a critical witness. Moreover, based on the content of the affidavit and the letter -- and the questions asked of Peyton Manning at his deposition based on the affidavit and the letter -- it was clear that Naughright’s lawyers would be calling Saxon to testify at trial.

When I was a kid and first heard the saying, “A lawyer never asks a question he doesn’t already know the answer to,” I got very confused. How in the hell do you know the answer if you don’t ask the question?

At a civil trial, the lawyer knows the answer because the lawyer asked the question during a deposition.

The incident that Saxon witnessed happened in 1996. Saxon’s affidavit was signed on November 1, 2002, more than five months after the defamation lawsuit was filed. His letter to Peyton Manning came on December 10, 2002. The contents of the materials and the dates on which they were created make clear that Saxon had been talking to Naughright and her lawyers.

Thus, apart from trying to flesh out his story, probe it for weaknesses, and otherwise lock him in under oath to a full explanation of what he saw and heard, Peyton Manning’s lawyers should have wanted to find out what Naughright and her lawyers said to Saxon, and what Saxon said to them.

For starters, the format of the affidavit suggests it wasn’t typed by him, unless he also typed into the document the portion where the notary public confirms that the person was under oath. So if Saxon didn’t type the affidavit, who did? Did Saxon write the words or were they written for him, based on notes taken by a lawyer during an interview or notes Saxon created or what? Did Saxon review the affidavit before signing it? Were there multiple versions, with changes requested by Saxon? Where did all of this take place? Who was present?

These are all standard questions that most lawyers would ask when faced with circumstances like this. Manning’s lawyers asked none of them, because Saxon was never deposed.

Beyond that, specific aspects of Saxon’s testimony needed to explored. The affidavit says at paragraph 2 that Saxon saw Manning drop his pants “below his knees over [Naughright] for a period of 5-10 seconds,” which contradicts Manning’s version. The affidavit says at paragraph 3 that the behavior was directed not at Saxon but at Naughright, and that Saxon didn’t make an “off color” remark that would have caused Peyton Manning to moon him, both of which assertions contradict Manning’s version. The affidavit says at paragraph 4 that, when Peyton Manning pulled his pants down, “he was facing me with his back to Jamie,” which contradicts Manning’s version.

The affidavit says at paragraph 6 that Naughright “was clearly upset by Peyton’s actions and called him an ‘ass’,” which contradicts Manning’s version. At paragraph 7, the affidavit says that "[Naughright] looked at [Saxon] after Peyton had exposed himself to her and her face seemed to register surprise and outrage,” which contradicts Manning’s version. At paragraph 8, the affidavit says, “I too was shocked by Peyton Manning’s behavior,” which necessarily conflicts with Manning’s general description of his conduct. At paragraph 10, the affidavit says that Saxon has never described the incident as a “mooning” and that Saxon does not believe Manning’s actions were a “mooning,” which contradicts Manning’s version.

Those allegations from Saxon’s affidavit would have generated at least 30 minutes of deposition questions and answers, with the lawyer attempting to demonstrate through Saxon’s testimony the potential confusions and inconsistencies and curiosities in the affidavit. Most significantly, the affidavit never uses the phrase “sexual assault” and it never suggests that there was contact between any portion of Manning’s body and Naughright’s head or face. Instead, Saxon uses the same term that Naughright employed when complaining about the incident in the 27-item harassment complaint filed against the University of Tennessee in August 1996: That Manning “exposed himself” to her.

Then there’s the letter sent by Saxon to Peyton Manning, a letter about which Manning was grilled at length during his deposition. (Naughright’s lawyer seemed to be suspicious of Peyton Manning’s testimony that, because the letter arrived during football season, his wife sent the letter to Archie Manning without Peyton ever seeing it.) The Saxon letter cries out for a series of specific questions about why the letter was sent, and what the various statements mean.

“Peyton, you messed up,” Saxon wrote in the third paragraph of the letter. “I still don’t know why you dropped your drawers. Maybe it was a mistake, maybe not. But it was definitely inappropriate. Please take some personal responsibility here and own up to what you did (and for what was said in the book!) Jamie is a great trainer; help her restore her credibility. Only you can do that. I never understood why you didn’t admit to it; you would have endeared yourself to your fans that thought/think highly of you. Don’t get me wrong; I don’t believe that a lawsuit for millions of dollars is the right way to go about it (for Jamie). I told her that, and her lawyer as well. Coming clean is the right thing to do!! Bro, you have tons of class, but you have shown no mercy or grace to this lady who was on her knees seeing if you had a stress fracture. It’s not too late. She had had a tough go of it since leaving UT. You might say she asked for it, but she was minding her own business when your book came out.”

It’s clear based on the letter that Saxon spoke to Naughright and her lawyer, not only about the 1996 incident but about the lawsuit arising from a book published five years later. It’s clear that their communications were sufficiently extensive to entail Saxon expressing his views about a lawsuit regarding the contents of Manning’s book and Saxon actually drawing conclusions about how the book damaged Naughright’s credibility. Saxon’s letter crosses the line that divides neutral factual witness from advocate, and it thus was critical for Manning’s lawyer to get Saxon under oath in the hopes of better understanding his point of view, locking in his story, and (ideally) creating a transcript of testimony that would have allowed Manning’s lawyers to discredit all or part of Saxon’s testimony at trial.

It’s unclear why that didn’t happen. It should have, making the failure of Manning’s lawyers to question under oath the third biggest mistake in this matter. It’s still a distant No. 3 to Peyton Manning’s decision to say anything in print about Jamie Naughright, which is just a half-step below Peyton Manning doing whatever he did in that training room 20 years ago next week.

If you’ve made it this far, you may be interested in hearing a full explanation of the litigation. Click here for a special PFT Live podcast for a start-to-finish summary and analysis of the case.