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February 22, 2008

Stupid Lawyer Tricks

Clemens v. McNamee--After the Hearings

by Derek Jacques

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Not every legal option is wise. The example that always sprang up in my own experience was in divorces: men would get involved in divorce proceedings, and almost invariably, their "friends" would start spreading rumors that the soon-to-be ex-wife had been involved in extramarital affairs, and that maybe some or all of the couple's children may have been the result of those alleged affairs. The men would then go to a lawyer with the question: can I have my kids DNA-tested?

The answer to this question was usually "yes," but that wasn't the end of the discussion, because a legal right to a DNA test doesn't speak to the real-world consequences of such an action. If these guys went forward with the testing, and their suspicions were proven correct, they might get out of paying child support, but they could also lose their parental rights over children they'd raised their entire lives. If they were wrong, they risked destroying their relationship with the children, if those children should ever find out about the test. The question wasn't so much "can I do this" as "is it a good idea?"

I bring this up to start off with because Roger Clemens could still go ahead with his defamation lawsuit against Brian McNamee after last week's congressional hearing, but is it really a good idea? Clemens's suit wasn't ever about the money he could get from McNamee if he won-McNamee isn't ever likely to have enough money to make it worthwhile for a multi-millionaire like Clemens to sue. The goal of the litigation was to rehabilitate Clemens's reputation, a goal that, after last week's hearing, might be largely out of reach. Clemens faced many committee members, most notably the committee chairman, Representative Henry Waxman of California, who clearly believed the Rocket to be a liar. The committee members who aimed their most pointed questions at Clemens-almost exclusively members of the Committee's Democratic majority-were able to point up some apparent inconsistencies in Clemens's deposition that reduced him to head-spinning levels of hypothetical doubletalk about what Andy Pettitte would have told him and what Brian McNamee would have told him that really didn't make any sense.

Worse than any damage that Clemens might have done to himself was the damage done by his workout buddy, Andy Pettitte. Pettitte, who wasn't involved in the hearing, testified in his deposition that Roger Clemens confessed HGH use to him in "1999 or 2000." Now, even though everyone involved in the hearing spoke glowingly of Pettitte's credibility-with Waxman going so far as to claim that Pettitte's "consistent honesty makes him a role model, on and off the field"-as Will Carroll pointed out last week, his testimony was not as clearcut as some on the committee made it seem. Pettitte seemed certain, if extremely vague, about Clemens's HGH confession, but what few details he gave were contradictory. Pettitte originally claimed the conversation between him and Clemens took place in 1999, but he also thought that McNamee was on the Yankees' training staff at the time. It took a lot of gentle prodding by the attorneys interviewing Pettitte to remind him that McNamee was still on the Blue Jays' staff in '99, and to obtain the concession that the conversation might have happened in 2000. Pettitte provided an affidavit by his wife backing his story, but her recollection was no more definitive than his was, and the affidavit seemed to merely recycle his deposition testimony. Initially, Pettitte claimed to have believed, in 2005, Clemens's claim that he had misremembered the earlier conversation. About two hours of leading questions later, he was sure that he hadn't. Pettitte's account also disagreed with the stories of C.J. Nitkowsky and McNamee with regard to some events and conversations they claim he witnessed or participated in.

Reading the deposition, I didn't get the impression that Pettitte was a terribly good witness. He seemed earnest and cooperative, but his recollections weren't terribly strong, and his cooperativeness could be a liability under cross-examination. That might be one reason that the committee excused him from last week's hearing, despite the entire hearing revolving around his testimony: in his deposition, he'd already told the story the Committee's attorneys wanted to hear, so no one wanted him in the hearing room to potentially complicate things.

Despite those caveats, Pettitte's allegations that Clemens confessed to HGH use changed the geometry of Clemens's civil case. We go from a "he said/he said" battle of credibility between Clemens and McNamee to a "he said/they said" battle, with Pettitte and his wife corroborating McNamee's story. Pettitte's follow-up discussions with McNamee after the two HGH talks with Clemens-and his impression of McNamee's reactions-are consistent with what you'd expect in the situation: McNamee upset at first that Clemens blabbed to his goody-two-shoes pal, then disgusted at Clemens's attempt to convince Pettitte that he wasn't talking about his own HGH use. For his part, Clemens didn't bring much to the table in the Capitol that would rebut that story.

Last week, Clemens refused to attack Andy Pettitte, insisting that his friend must "misremember" their conversations. That explanation didn't seem to hold much water for the Committee, or for the public at large. If Clemens wants to continue with this defamation suit, he'll have no choice but to try to cast doubt on Pettitte's story, by any means available. So the question for the Rocket-with apologies to the worst Irish brogue to win an Academy Award-is: What are you prepared to do?

A few bullet points to wrap up this conversation:

  • You want a near-guaranteed way to look like you're lying? Tell the world you're giving them the whole truth, then later get forced to admit an embarrassing fact you'd previously omitted. There's no reason why Debbie Clemens's HGH use shouldn't have been discussed in the 60 Minutes interview, or at the press conference the next day, at latest. By withholding the information Clemens gained nothing, and cost himself immensely in terms of credibility in the long run.
  • One factor that most commentators seemed to have taken a bit too seriously was the demeanor of the two principals when they testified. Clemens was licking his lips furiously, and was obviously rattled by some of the questioning, but that's not too surprising when a normal person is up against a group of politicians who are out to get him. Meanwhile, McNamee was an undercover cop before becoming a personal trainer; his testimony was precisely what you'd expect from a professional witness, trained by the NYPD to handle serious questioning by defense attorneys. He wasn't cowed by the authorities questioning him. His answers were short, simple, declarative statements. He refrained from speculating or asking rhetorical questions. He spoke slowly and paused to think before giving each answer. It was pretty much out of a textbook, and the benefits showed when Republican Committee members took to grilling him. McNamee gave them nothing; when necessary, he just gritted his teeth and absorbed their insults (as he did when Chris Shays intoned "So…YOU ARE A DRUG DEALER!") rather than tying himself in knots trying to deflect their attacks.
  • The Nannygate controversy-which Waxman played to the hilt-turned out to be much ado about nothing. Despite the claims of possible witness tampering, the Clemens's nanny gave the Committee precisely what they wanted: she placed Canseco and Clemens in Canseco's house at the same time at some point during the three-game series in question. No one seemed too bothered that it didn't happen exactly the way McNamee related to the Mitchell investigators.
  • With the credibility arrow turning toward McNamee, what are the prospects of yet another All-Star perjury indictment coming out of this hearing? I count them as being rather slim-Pettitte's corroboration makes McNamee's story more credible, but a criminal perjury conviction requires proof beyond a reasonable doubt. The x-factor in all of this could be the collection of needles and gauze McNamee provided the feds. As I mentioned last time, there are serious problems with the trustworthiness of seven-year-old medical waste, but Clemens's DNA on those needles could be enough to convince a grand jury.
  • One of the refrains of the hearings was, "We're here to save lives, not ruin careers." If that's the case, it's a shame the media attention last week was on the Clemens/McNamee hearing, not the much more informative hearing the day before, in which a foursome of scientists tried their best to educate the committee on B12, HGH, lidocaine, and steroids. Maybe then more people would have gotten the message: "HGH is dangerous, and possibly useless to improving athletic performance."
  • The final, bizarre note about the Congress's voyage into the Clemens/McNamee mess was Waxman's attempt to wash his hands of the whole deal, insisting the final hearing was only held at the request of Clemens's attorneys. It was a vicious cop-out that didn't acknowledge the wrong-headedness of the Committee's strategy, which from the very first put Clemens, Pettitte, and McNamee on a collision course in their hearing chamber. I can understand the arguments that the Committee's authority extends to drug testing in professional sports, but it's an entirely different matter for a legislative body-no matter how broad its oversight authority-getting involved in a rather basic dispute between private citizens, no matter how famous. In this case, the Committee would have been well served to remember the words of Rick Blaine: "It doesn't take much to see that the problems of three little people don't amount to a hill of beans in this crazy world." Sometimes you've got to set aside the soap opera and keep your eyes on the bigger picture.

Derek Jacques is an author of Baseball Prospectus. 
Click here to see Derek's other articles. You can contact Derek by clicking here

Related Content:  Andy Pettitte,  The Who

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