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February 12, 2008

Stupid Lawyer Tricks

Clemens & McNamee Go to Congress

by Derek Jacques

While I was off in the Dominican Republic enjoying 80-plus degree weather and watching real, live baseball, everyone's favorite steroid drama was spawning depositions, social calls, leaked photographs, outlandish claims, and enough saber-rattling by the parties' lawyers to make you think you'd accidentally stepped onto the set of a sequel to the F. Murray Abraham/Eric Roberts fencing film, By the Sword. Rusty Hardin and Earl Ward have been so histrionic defending their respective clients in the press that they make Jack Nicholson's performance as Frank Costello look nuanced and restrained. Well, now that I'm back in the frozen northeast, and the side players to the Clemens/McNamee drama (Andy Pettitte, Chuck Knoblauch, Kirk Radomski) seem to have fallen off of Congress's witness list, I figured I might as well give you a little guide to a few legal concepts that could help you make sense of the goings-on in Washington this week.

Materiality: This is the concept that a piece of evidence—be it a physical item, a document, or even a piece of testimony—has to matter to the outcome of the case or inquiry in order to be relevant. For example, it's hard to imagine any situation where the so-called Clemens Report is considered material to any of the Clemens/McNamee proceedings, before Congress or in a court of law. Since the last time we discussed this, a foursome of academics has taken on the topic in the New York Times, and found the Report as unsatisfying as I did a few weeks ago. While the Report's authors have written a defense of their work, I don't think that there's anything they can say in defense of the Report's most risible sections, as pointed out by reader D.K.:

One example that stood out was Hendricks' argument that Clemens in 2005 would have finished 24-3 had he pitched for the Rangers instead of the Astros. The method for proving this—using the number of runs the Rangers scored on the corresponding date Clemens started for the Astros.

This method is asinine to begin with, but it gets even worse when you notice how the report went about reconciling the dates of Clemens' starts when the Rangers didn't play: It used the Rangers' scoring from the previous game or the next game. Can you guess how they decided which of the two games to use?

Observe that Clemens started May 30, when the Astros lost to Cincinnati, 0-9. The Rangers didn't play that day, but did play May 29 and May 31, winning 12-4 against Chicago and 8-2 against Detroit. Hendricks' report uses the 12-4 win as the corresponding date, not the 8-2 win, obviously because the 12 runs here helps its argument; Clemens presumably would have won that start, 12-9. This is a prime example of what happens when you start with a conclusion and cherry-pick facts to support it, rather than start with facts and then form a conclusion accordingly.

There's no way that work like that actually has any consequence to the process of figuring out if Clemens used steroids in 2001, or lied about using them. Another element of Clemens's defense whose value might be overstated, in terms of how material it is to the matter at hand, is the claim that Clemens can prove that he wasn't at a party thrown by Jose Canseco, as McNamee claimed in the Mitchell Report. McNamee's story of how Clemens became interested in using PEDs—supposedly after a conversation with Canseco at the party he didn't attend—is interesting, but it is only background to the "material" part of what he told Mitchell, which is that he personally injected Clemens with PEDs, and that Clemens not only knew that he was taking PEDs, but specifically requested them and sometimes provided them. Even if Clemens proves that McNamee was lying about him at the party, it does nothing to directly rebut the parts of McNamee's tale that are more important.

Credibility: Credibility's rather self-explanatory. While the Canseco party story may not be directly applicable to the core of Clemens's legal troubles, it is another building block that Clemens and his attorneys will likely use to attack McNamee's credibility, adding to a list that includes McNamee's admitted drug distribution, making questionable claims about his credentials, and allegedly drugging and raping a woman in Florida. While most of these credibility claims attack McNamee's character, branding him a liar and worse, this latest inconsistency also attacks the accuracy of recollections—if Clemens can prove he wasn't there, it means that either McNamee made the incident up, or that his memory's so poor that he can't keep his facts straight about anything.

Meanwhile, McNamee's attacks on Clemens's character took a bizarre turn when it was revealed last week that Clemens supposedly ordered him to inject his wife with HGH for a Sports Illustrated photo spread. Unlike the dubious claims about HGH building strength or shortening athletic recovery time, everyone seems to agree that HGH works wonders cosmetically, increasing the appearance of muscle definition. Surprisingly, the Committee hasn't added Debbie Clemens to their witness list for Wednesday's hearing—it would be interesting to hear the Committee lecture her about how player's wives are role models, too.