Character at the heart of suit filed by Clemens
Within hours after former Sen. George Mitchell issued a report in which Brian McNamee contended he had injected Roger Clemens with steroids and human growth hormone, Clemens’ attorney issued a statement blasting the claims as “uncorroborated allegations of a troubled man threatened with federal criminal prosecution.”
That is the essence of the defamation lawsuit Clemens filed this week against McNamee, one month after the report was released and Clemens subsequently denied the claims. The suit foreshadows a potential strategy should the case reach a jury, according to veteran Los Angeles libel lawyer Anthony Glassman: You can’t believe anything McNamee says, about steroids or anything else.
To that end, Glassman said, Clemens could hope to unveil a parade of witnesses to attack McNamee’s credibility.
“It isn’t just going to be Clemens on one side and McNamee on the other,” Glassman said. “They’ll try to show McNamee is unworthy of belief for a whole host of reasons, based on alleged misconduct here, there and everywhere.”
On Tuesday, McNamee’s lawyer, Earl Ward, asked Congress to obtain the recording of an interview between his client and two investigators representing Clemens. McNamee told Ward the investigators asked him to recant his claims, Ward told the Associated Press.
Clemens’ suit offers one example of McNamee’s alleged misconduct, claiming McNamee “lied to police officers” as a suspect in a Florida rape investigation seven years ago. He was not charged.
On Tuesday, St. Petersburg police released a report in which Det. Donald Crotty wrote of McNamee: “He lied to me.”
Glassman said the chances were “better than 90%” that a judge would refuse to allow Clemens to introduce that report as evidence, so as to avoid “a trial within a trial” on an unrelated matter in which no charges were filed.
Jody Armour, professor of law at USC, agreed a judge probably would keep the report out of evidence but said Clemens could argue it should be used for the limited purpose of helping a jury assess McNamee’s credibility.
“It’s going to be a real fight,” Armour said.
As investigators representing Clemens search for other witnesses or incidents that could cast doubt upon McNamee’s credibility, the foundation of the case rests upon what McNamee told federal agents and Mitchell. According to the suit, McNamee told Clemens’ investigators that he “made his allegations . . . after being threatened with criminal prosecution if he did not implicate Clemens.”
That, according to Clemens’ attorney Rusty Hardin, could explain why McNamee told federal authorities Clemens had used steroids after telling them he had not. Hardin said he has heard many people challenge Clemens’ denials by asking what motive McNamee might have had to lie.
“What he told our people,” Hardin said, “was from the beginning, the feds believed Roger used, and so the truth as far as the feds were concerned was that Roger used steroids. . . .
“If the person who’s going to decide perjury has already made up his mind that the truth is X, then the person being talked to has a reason to do it. I’m not saying that’s what happened here, but he has a reason to do it. And McNamee made clear to our people . . . they were insistent that he was lying about Clemens.”
But Armour said a jury also could decide the threat of prosecution and prison time persuaded McNamee to tell the truth, even after previous denials to federal agents -- and, over several years, to reporters.
In the taped telephone call Hardin played in a news conference Monday, McNamee appeared to allude to that threat when he told Clemens: “All I did was what I thought was right. And I never thought it was right, but I thought that I had no other choice.”
The question jurors would have to answer, according to Armour: “Would a threat like that be more likely to make someone who’s been lying tell the truth or be more likely to make someone who’s been telling the truth lie?”
Mitchell said that threat provided McNamee with “an overwhelming incentive to tell the truth.”
Mitchell also said McNamee’s allegations were corroborated in his report by Kirk Radomski, the drug distributor and former New York Mets clubhouse attendant, and subsequently corroborated “by Andy Pettitte, who said that McNamee told the truth as to him.” Pettitte has publicly confirmed McNamee’s statement that he provided him with HGH.
The immediate legal question involves where a jury trial might take place -- in Clemens’ hometown of Houston, or in New York, where McNamee lives. Williams and Armour each predicted any trial would take place in New York, but Williams credited Hardin for filing suit before McNamee could follow through on his threat to do so.
“Basically, he has beaten McNamee to the courthouse,” Williams said. “He has a much better chance of litigating this now in Houston.”
The 14-page suit extensively highlights Clemens’ athletic accomplishments. That biography is irrelevant to the issue of whether Clemens used steroids, but Armour said a juror might be swayed if he or she cannot decide who is telling the truth.
“If you think a defendant or plaintiff is an especially good guy, you’re more likely to resolve questions of doubt in his favor,” Armour said.
In an SI.com interview published Monday, McNamee again said Clemens used steroids.
“Everything rests on the credibility, as it applies to Roger, of Brian McNamee,” Hardin said.
Hardin said he believes Clemens’ denials.
“Roger Clemens is either the world’s greatest actor,” Hardin said, “or he didn’t do that.”
--
