Clemens sues McNamee
Posted by: Peter Abraham - Posted in Misc on Jan 07, 2008 
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Roger Clemens is willing to meet his accuser in court. He has filed suit against Brian McNamee for defamation.
The suit alleges that the federal government pressured McNamee to testify against Clemens and that he lied as a result.
Clemens becomes the first athlete to take this step. If he wins, the integrity of the Mitchell Report – and commissioner Bud Selig – will be damaged beyond repair. The question now is whether Clemens can prove it.
The Houston Chronicle story has more detail. Clemens says he will still testify before Congress.
way to go clemens…
IDK, I am beginning to see Clemens side of things, or is it just me? If He takes a lie detector test then I will completely believe Him. Any one can lie in front of congress.
it is possible to get around a lie detector test. after all like george costanza says, “it’ not a lie if you believe it.”
Lie detectors (polygraphs) are not reliable, as Clemens said correctly if vaguely during the interview. I’m not sure if the risk is false positives or false negatives. He’s so emotional that I would think he could get false positives.
I hope he exonerates himself and proves the so called journalists and fans that considered him and every other ball player guilty before they’ve even had a chance to prove themselves innocent wrong. I totally believe him but its a shame he has to go through all this! And then I hope that this all goes away!
One other thing for Peter, can we get a guest blogger that actually will blog about the Yankees team and what they must do to compete in 2008, and/or about the minor league system. Suggestion: Patrick at Pinstripesplus.com would be great! Come on, these other guest bloggers have been horrid to say the least.
i have to admit my skepticism in this whole situation, but seeing Clemens file suit following his interview last night has done a lot in my mind to think perhaps he is telling the truth here.
i know we have a long way to go, but i’m starting to give him the benefit of the doubt here until we see more of the evidence come forward.
I want to believe Clemens, and I think I do. He gave a lot of good arguments (why hasn’t he broken down like Bonds?) But, I think this suit it being filed because it’s Clemens’ word against McNamee and nobody can prove anything. That’s going to be the end result here.
Lie detectors aren’t that easy to beat, — watch the Mythbusters show on them — but still with some training (meditation, relaxation breathing, e.g.) they can be beaten. And they do not work on pathological liars.
In a civil suit, which Clemens has here, the standard of proof is only a preponderance of the evidence. It will basically come down to whether a jury believes Roger or Brian. But I will have to withhold judgment until all the evidence is presented, such as where did the steroids come from.
Clemens complaint basically recites that the government brought up Clemens name first, McNamee denied knowing anything about Clemens use, the government then threatened him with prosecution (though U.S. Attorney Parrella and IRS Agent Novitsky — Novitsky is the one who got Bonds), and then the government went back to talking about Clemens.
McNamee then refused to talk to Mitchell, but the government again threatened to make him a “target” instead of a “witness.” As a result, he met with Mitchell’s people.
In front of the Mitchell investigators, the federal agent read McNamee’s previously obtained statement and then asked McNamee to confirm it.
Wow. If this is all true, it is daming to the prosecutors and to the way Mitchell obtained information for his report (patting myself on the back — I have said Mitchell screwed this up all along0. It implies that McNamee was told to implicate Clemens or face prosecution. As many lawyers will tell you, when a witness decides to lie, they will throw in truthful details (like living in the Skydome hotel with Clemens) in order to hide the lies. McNamee might have thought that they would find no evidence and his lies would get burried — why should he know that the Feds were giving all their information to Mitchell and that he would be forced to talk to Mitchell? I am pretty sure that was not public knowledge over the summer.
My meter is tilting heavily towards believing Clemens (after voting that I thought Clemens was a user in Pete’s poll a few weeks ago) — but there is certainly a lot more to play out here.
Roger is trying to draw this thing out for as long as he can, and whether he used PEDs or not, he is doing the right thing. One of his main goals throughout this whole thing is not only to prove his innocence, but to establish doubt in the minds of baseball fans everywhere. He has been seemingly straight-forward enough to draw some support and make some people believe that he is not a PED user.
Clemens also knows that McNamee had no proof. There are no cancelled checks or syringes with Clemens DNA on it. So it’s his word against McNamee’s.
The problem of course is what Clemens is trying to prove. Legally, for a public figure like Clemens, he not only has to prove that McNammee’s actions caused him injury (in the legal sense) but that the injury was foreseeable and McNamee’s action’s were taken with malicious intent.
It’s a very, very, very high legal standard and the reason public figures rarely undertake such proceedings.
Beyond that, McNamee’s attorneys will be able to ask for discovery and dispose Clemens, multiple times if they wish and will comb over all his statements for any inconsistency.
This will be ugly and regardless of the outcome, will not end well.
My gut says this case never sees a court room. Clemens doesn’t care about monetary damages. The ultimate goal is winning in the court of public opinion and I think this helps that.
IMHO, this case will never get to trial. This was brought to beat McNamee to the courthouse, to put Clemens story out clearly and concisely, to provide a legal mechanism for Clemens to collect evidence, and — depending on who you believe — either (a) to apply additional pressure on McNamee to tell the truth, or (b) to muddy the waters even further and to an extent where it is impossible to prove anything.
I would love to see a video of the Feds talk with McNamee — but my guess is that one does not exist OR Clemens will need to fight the Feds very hard to get it.
D’oh, you are of course correct, Sean. Clemens does have to prove malicious intent, which is extremely hard to do; though it was proven against Al Sharpton in the Twana Brawley case.
Still don’t know if I believe Roger (I need to see more concrete evidence on both sides to presume guilt or innocence), but have to admit I’m very impressed with how he’s actively go after this report so far. His display of determination in this case has helped me further understand how he could have been so successful as an athlete, which will make it more of a pity if it turns out he did in fact have moments of weakness and resort to PEDs.
Dee, there is very little chance of concrete evidence. It is time for the prosecutor and federal agents to come forward with a tape or transcript of McNamee’s interview. If there is one, we can have a better idea of whether he was coerced into implicating Clemens. McNamee says that he has no physical evidence and Clemens cannot prove a negative.
“the standard of proof is only a preponderance of the evidence. It will basically come down to whether a jury believes Roger or Brian.”
My defense of Roger has primarily been along the lines of “innocent until proven guilty.”
Now it seems McNamee might not get a fair shake if Roger’s burdon of proof is simply “a preponderance.” If McNamee is telling the truth, he could be in a position where he has no evidence at all other than having been there. That’s the irony/convenience of the behind-closed-doors nature of McNamee’s accusation.
I also am believing Roger more and more, but that doesnt mean he didn’t do it. He had suspisions even before the report so that is never really going to go away. I hope he fights this thing to the end.
“Now it seems McNamee might not get a fair shake if Roger’s burdon of proof is simply “a preponderance.â€
It’s a preponderance of the evidence as to all the specific elements Roger must prove. It’s a pretty tall order.
clemens obviously took a major hit from the mitchell report. but judging by reaction here and in the national press he’s gaining some support in the other direction. at least, the issues are now getting deeper and past the surface spin that the supporters of the mitchell report were putting out.
getting the feds to testify if they coerced mcnamme or not is going to be really enlightening. as murphydog has said , this may become a big problem for the feds and irs investigators for misconduct.
Chuck:
I’d be shocked if a prosecutor or special agent voluntarily produced an investigative record without a court order compelling him to do so. Sets a dangerous precedent for other criminal cases and investigations.
That’s why it will be so interesting to see how the defamation court handles pre-trial discovery in this case. I think the feds should lose their usual protections from disclosure as a result of their close connection and information sharing partnership with a civil enterprise. But the court will have to decide that before anything gets turned over.
One question that I would love to see Andy answer under oath, which will tell me alot: “Did you ever speak to Roger about using PED’s and do you have any knowledge that Roger took them?”
Wonder if Andy would lie to protect his pal.
After thinking about the interview a little more something is bugging me:
Clemens stated last night that McNamee never claimed to have bought steroids for him. He then asked if he used where did he get them? Someone had to have sold them to him and he challenged that person to come forward.
A guilty person doesn’t make that statement. To confidently say that on National television means to me that the person doesn’t exist.
So I ask, if McNamee and Clemens didn’t buy the PED’s, how did Roger obtain them to give them to McNamee?
Way to go, Roger!
I’m happy either way! Because if Roger exhonerates himself, good! But if not, and we see someone come forward and say “Yeah, here’s the signed invoice for those steroids” then we can stop guessing.
That’s the one thing in the 60 Minutes interview that struck me and got me thinking: McNamee claims Roger provided the Steroids. And Roger says: Ok, why hasn’t anyone else come forward? Where is the evidence that I got them anywhere?
But I’m with Pete. If Roger wins, the Mitchell Report becomes swiss cheese.
That is not true. When it states that public figures have to prove malice, it doesn’t mean that you are doing it with malicious intent, it means you are saying things you know to be false and saying them anyway.
If Clemens is found to be correct then malice (the LEGAL FORM) is a slam dunk.
I find it interesting that McNamee and Clemens also had their first talk since the Mitchell Report on Friday. Either Clemens figured slamming McNamee, like Mac did to him – where he borrowed fishing equipment just prior to the report being released but didn’t say a thing, so Clemens is getting even by filing the suit. OR Clemens and McNamee cooked this up as their way of clearing Clemens name (even though it fries McNamee) and Mac gets a few million extra in the bank.
It is possible that Clemens got some interesting information out of McNamee during the conversation that finalized them filing suit.
One further point, despite Myth Buster’s claims, Lie Dectectors are not admissable in court because they have been proven in court cases – note not just once – that they are not reliable. Yes, they work sometimes, but depending on you personality and convictions you can fool them or have false positives.
Myth Busters is a fine show, but remember, its for entertainment more than anything else, and they don’t always do a very good job at “busting” the myths.
Murph: I agree with you 100%. In the usual situations, the prosecutor would never give up their records of an investigation (particularly in the absense of a relevant prosecution) and should not be compelled to disclose in a collateral proceeding — but laying down with the Mitchell investigation changes everything. I don’t know if there is a relevant statute here (that might make this impossible), but if I was a judge, I would be telling the prosecution and agents that everything they have relating McNamee and/or Clemens is fair game in the civil suit.
Truck,
Looks like we came to the same conclusion at the same time. Wild, huh?
Another question is: If Roger trusted McNamee enough to shoot him with steroids, wouldn’t he have asked McNamee if he could get the steroids? Wouldn’t Roger have thought that McNamee would know more about, and be able to possibly to do a better job procuring the right steroids? What does Roger know about ‘getting’ them?
I’m no lawyer, but I know enough about defamation to know that Roger Clemens can’t win this.
He probably can’t prove Brian McNamee’s statements were false, but even if he could, he can’t prove that McNamee acted with actual malice.
His suit reminds me of the Whitewater suit and that women Susan McDougal who went to jail because she would not testify for the government. The premise of her lawsuit which she won was that the feds had very specific things that they wanted her to corraborate with regard to Clinton and Whitewater. She said that she was not able to do so because she was afraid that she would be put in jail for perjury refuised to answer the questions and when she said that they put her in jail for contempt of court and obstruction of justice. She was later found not guilty by a jury for this stuff but lets say the same thing happened with McNamee. He was told that if he didnt tell the truth they would throw him in jail.Perhaps they came to him and said ok we have stuff on Clemens and you need to back this up or you will go to jail for perjury.
Again in this whole thing I am not sure who to believe, especially since Andy said what McNamee said was true as far as he was concerned. But with Clemes filing the lawsuit he has now taken it a step further than anyone else ever has.
Clay Bellinger
January 7th, 2008 at 10:59 am
One question that I would love to see Andy answer under oath, which will tell me alot: “Did you ever speak to Roger about using PED’s and do you have any knowledge that Roger took them?â€
Wonder if Andy would lie to protect his pal.
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I could see where Pettitte might not remember telling him, but, not sure that he’d lie.
It’s quite possible that Pettitte never told Clemens, his idol. Do you tell your best friend everything? Does he tell you? If you cheat on your wife, cheat on your taxes or pad your expense account, do you tell your best friend?
Why would Pettitte talk to Clemens about this (or vice versa)? When you are doing something you shouldn’t — breaking the law, cheating on your taxes, taking steroids — you don’t necessarily tell your “best buddy” about it. Yes, some people flaunt these things as a badge of honor (e.g., Canseco). People with a little more dignity or shame do not.
Green Beret, Good point, they might not tell each other everything but in this case you would think they would tell each other since they had the same trainer and were working out together almost all the time. You are right, Petitte will most likely not be able to recall.
Chuck:
“I don’t know if there is a relevant statute here (that might make this impossible), but if I was a judge, I would be telling the prosecution and agents that everything they have relating McNamee and/or Clemens is fair game in the civil suit”
When discovery starts and Roger’s side demands all federal investigative records, notes, memos etc., the feds will move for a protective order citing well recognized exemptions from disclosure, like the need to preserve confidentiality, the integrity of on-going investigations, the need not to divulge investigative techniques, etc. (There may be a statute that says all or most of this).
The judge however can deny the exemptions and order disclosure if, for example, it appears that the Feds acted in such a way as to waive the confidentiality of the documents and records by sharing them with Mitchell, a private person. Or Clemens could argue that based on the interview his investigator had with McNamee, there is a basis to conclude that the feds engaged in misconduct resulting in the defamatory statement being elicited and the only way he can defend his name is to get access to all the records.
Posted this in the wrong thread as murphydog was responding to me here:
I think Murph alludes to this, but the more I think about it, the more I believe Clemens has no interest in any financial recovery. Clemens is going to use these proceedings against McNamee as a means to villify the Mitchell investigation, the federal investigation, and the cooperation between the two groups that led to the disclosure of McNamee’s statements that would otherwise have been kept secret unless someone was actually charged with a crime based on these statement. Clemens can’t go after the prosecutor or Mitchell directly — but through McNamee he can force them to open up about the clumsy and possibly unethical methods they used in their respective investigations.
I don’t know if ‘winning’ the case is the most important thing. I think Roger if concerned about the court of public opinion. Even if he can not ‘prove’ that McNamee lied, if the procedings were such that it seemed like he lied, or the defense is able to holdback evidence that seems to ‘incriminate’ McNamee or the way Mitchell/the Feds procured their info, the genral public may find for Clemens even if a court doesn’t.
What Roger has done so far has already swayed some in his direction. I think this is his goal. I think he has enough legal advice to know there will probably never be a clear cut verdict one way of the other (UNLESS Roger is lying, and someone steps forward with proof that he did steroids).
But if things continue in the current vain, and it remains a he said-he said issue, then winning public belief will be a victory for Roger.
I have to say that I’d hate to think that a person could go as far as sueing for defamation of character, all the while knowing they’re lying and think they’ll get away with it. That would take a sort of megalomaniacal cynic that I don’t even think a man who named all his chidren names starting with the letter K possesses. For his own damn sake, I hope he’s telling the truth.
As I said previously, how can you (as in you, the posters who previously convicted Clemens) believe McNamee’s word (give not under oath, but under threat of prosecution), over Clemens?
I still don’t get it.
Here is a good link about the tactics at work. Essentialy, Clemens lawyers used the 60 minutes interview to skmoke out whether McNamee had a smoking gun. When he didn’t deliver one, then Clemns figured he could lie with impunity at Congress. (I’m not taking a view either way but as a strategy it makes some sense- whether he’s innocent or guilty)
http://shysterball.blogspot.co.....nwalk.html