Clemens lawyers up

December 13, 2007 by Benjamin Kabak 48 Comments

So here’s where things really get interesting.

Roger Clemens has enlisted the aid of Houston attorney Rusty Hardin to combat the allegations put forth in the Mitchell Report, the Houston Chronicle reported this evening. Hardin got right down to work and issued a very strongly worded statement:

“Roger Clemens vehemently denies allegations in the Mitchell report that he used performance-enhancing steroids, and is outraged that his name is included in the report based on the uncorroborated allegations of a troubled man threatened with federal criminal prosecution. Roger has been repeatedly tested for these substances and he has never tested positive. There has never been one shred of tangible evidence that he ever used these substances and yet he is being slandered today…

“The use of steroids in sports is a serious problem, it is wrong and it should be stopped.

“However, I am extremely upset that Roger’s name was in this report based on the allegations of a troubled and unreliable witness who only came up with names after being threatened with possible prison time.”

If that doesn’t sum up the problems with the Mitchell Report — witnesses coerced by the threat of jail time to come forward — I don’t know what does.

Meanwhile, this game is just getting started. Who knows what Roger Clemens did or did not do? I sure don’t, and I don’t think anyone, other than Roger, really does. The real test though will be the threat of a law suit. If one of the players named in the Mitchell Report files suit, this whole charade will blow up in everyone’s faces. Yikes.

Update: For all of you legal eagles out there, ESPN’s Lester Munson has up a Q-and-A on the legal issues. If you want to know why players probably won’t sue or face many suspensions, that’s the article for you.

Chip

That’s it Roger, bring these idiot in front of a court of law and have them try to talk their way out of a slander case. This lawsuit is just the beginning, I expect Pettite to follow up very quickly as well. The glaring weakness of this report is obvious and I can’t wait for the commissioner’s office to be forced to issue a formal appology and retraction. I can’t believe they were dumb enough to publish something without any corroborating evidence and only one witness (who has a motive to make it up, namely revenge for being fired).

Sue them for all they’ve got Roger!
Relaunch

Klapish and Kay on Yankee hotstove said if Clemens really is innocent, he will either sue or take a lie detetctor test. I agree if he doesn’t do anything, his image will never repair.
Mike P

Sorry for being miserable, but I would love it if it blew up in MLB’s face. I am fed up with players being blamed unilaterally for baseball’s problems. Players were dishonest, but crucially they were not cheating. Why investigate the names of players who were doing what many others were doing, whilst the whole of baseball implied it was OK? Where are the names of owners who failed to bring in drug testing? Where are the names of journalists who failed to report the crucial facts until the Chronicle finally did it. Where are the names of coaches who allowed juicing to become endemic?
On top of the basis for the Mitchell report being flawed in my opinion, the report itself was flawed as pointed out by Clemens’ lawyers. Baseball will have to come to terms with the pain and hypocrisy of the steroid era, the Mitchell approach is a useless and expensive joke.
- Count Zero
  
  Agreed.
  
  This whole “Report” (and I use the term loosely) strikes me as nothing more than a negotiating tactic for the next CBA.
CB

Excuse me if this is a bit off topic – but I wanted to commend you guys at RAB for not getting involved with the nonsense that went on with so many other sports blogs today.

That “list” that was circulated this morning on so many internet sites was a disgrace. For no reason guys like Damon, Varitek and Pujols got dragged through the mud for absolutely no reason as that fake list was circulated and published this morning.

In particular, Deadspin did an absolutely awful job publishing that list and planting Garciaparra’s SI cover on their site. Of course they put up a disingenuous excuse of something to the effect, “well this list may not be correct but its circulating and we’ll know soon enough so we’ll run with it….”

You guys at RAB have written a lot about journalistic ethics and the main stream media. Not indulging in rumors this morning was the right thing to do. It’s unfortunate more sites didn’t do that.

Unfortunately, today was not a very good day for many sports blogs. Its pretty ironic when sites like Deadspin are calling the Mitchell report a sham after having printed a fake list of named players this morning on their own site just to drum up interest in their own site.

Seem like journalistic ethics are lacking pretty widely these days, whether its the main stream media or not.

http://deadspin.com/sports/is-.....333479.php
- http://www.riveraveblues.com Ben K.
  
  Thanks, CB. We appreciate the recognition, and we didn’t print that list for exactly the reasons you mentioned.
- Count Zero
  
  Well said CB. I second that.
LiveFromNewYork

Rockin’ Rocket. I expect nothing less.
barry

I’m only pre-law and I know that Roger has a case for slander and he could probably have his name stricken from the report and many other players would follow suit.
- Count Zero
  
  IANAL, but…what about the whole “absence of malice” thing? I mean, it seemed like Mitchell was very careful to say things like “subject a stated that subject b was using steroids.” In other words, he affirmed nothing, stated nothing — all he did was report what someone else told him or what evidence he had and he labeled it as such.
  - barry
    
    The whole point of the matter is you can not make allegations about a person without credible and substantial evidence, doing so without warrent makes them slander. Especially because the remarks affect both his public and private life as well as his career.
    - Count Zero
      
      Sorry — it’s not that simple as I understand US law (which is only a little).
      
      Absence of Malice (quoted from ESPN as linked in the original post – emphasis mine)
      
      “But any player who files a libel lawsuit over the allegations made in the report would be in for a host of difficulties. He would have to show that Mitchell was wrong and that he formed his conclusion because of malice toward the player. It is a burden of proof that is always difficult, and can be impossible.”
      
      Reporting something that turns out to be incorrect is not “slander” unless the reporter did it maliciously with the intent to harm the person. Journalism class in college — plus I saw the movie. :-)
    - Count Zero
      
      Also, it’s actually “libel” (written form) we’re referring to, not “slander” (speech). Just a technicality. ;-)
      - barry
        
        Clemens could rake in court by simply taking a lie detector test. It’s the same theory of proesecuting without evidence, you can’t do it. Even the threat of a lawsuit will ruin the legitimacy of the report.
Lanny

I’m glad Roger is fighting this absurd report. You just cant print accusations and have it printed as fact.
inman

smart move by roger to react right away but i believe he probably did something he shouldnt have. as for andy he is guilty by association [ in Americas eyes] until proven otherwise
wfbtr&gldchn

Mitchell broke no laws. He didn’t say anyone did anything, but simply released the results of his investigation. It was Clemens’ former trainer who implicated him, so the trainer is the only one Clemens could even consider suing for slander or anything else. This will not happen because, as someone stated above, malicious intent would have to be proven and in this scenario that would be almost impossible.
http://nyyu.blogspot.com Mike

As I wrote in my blog this morning, this is a cash cow for the players lawyers.

I read the report and there is NO EVIDENCE for most of the claims. Its all hearsay.

And don’t give me this crap about Mitchell’s credibility either. He’s a politician!

Notice how he went after Clemens. Anyone remember the not so friendly parting he had with the Red Sox?

The report should have never named names.

Selig should resign immediately.
LiveFromNewYork

Clemens would need to sue the trainer, not Mitchell. And Clemens can sue anyone he wants. Whether he will succeed or not isn’t the point. He can still sue and if I were him, I would. He can get his point out in the filings.
Donnie Baseball deserves to be in the Hall

Anybody really believe any of the named players did not use? I do not. I think this is just a small portion of the users. I think Mitchell did a poor job and just scratched the surface.

And for the list that leaked with the names of: Damon, Varitek and Pujols. Anybody doubt any of those guys either? Seriously the one sport that I love very much is a joke because of clowns who can not compete without cheating and robbing children who look up to them of their innocence.

When I was a kid I was not thinking who was on roids or HGH, these kids today think its a normal OK thing. If any of you have high school aged kids that will talk to you honestly they will tell you that about half the kids today playing ball are doing some type of steroid precursor, and or the very latest “vitamins” from GNC or other places that are far less reputable.
steve (different one)

the funniest part of this whole thing is the guy who called A-Rod “bush league” for yelling “Ha!” at him is on the list.

A-Rod was killed in the media for ruining the integrity of the game by yelling “HA!” at someone who was named.

hilaripus.
wfbtr&gldchn

I absolutely believe the trainer when he says that he personally shot steroids into Petitte and Rockets respective butt cheeks. The only reason it took the threat of prison time to jar the info loose is that the guy was friends with both of them and he didn’t want to give them up, but unlike Bonds’ trainer this guy wasn’t willing to go to jail for his famous buddies. Chalk one up to Bonds for having a dealer he could trust.
- http://www.riveraveblues.com Ben K.
  
  Read the report. Then come back and comment.
  
  No where does it say that any trainer shot steroids into Andy Pettitte’s butt cheeks.
LLOYD BANKS

Libel/Slander Legal Breakdown:

As a lawyer, I was thoroughly impressed with Lester Munson’s piece. He was absolutely correct that it will be nearly impossible to win a lawsuit against Mitchell based on the theory of libel. In New York Times v. Sullivan, the Supreme Court adjudicated that in order for a “public figure” (i.e. baseball players – people who thrust themsleves into the public limelight) to be successful under a claim of libel, he/she will have to prove “actual malice.” Actual malice requires the plaintiff to prove that the defendant made the statement(s) with “reckless disregard for the truth” and/or “knowing falsity”….

Long story short, NO ONE will be able to overcome this heavy burden. It will have to be shown that Mitchell published his report with knowledge that what he was publishing was wrong and inaccurate and done so with the intent to smear the image of the offended. Legal jurisprudence almost never accepts this claim – and rightly so.

You see, when it comes to “public figures,” most courts feel very little sympathy for them; they are viewed as people who are very well-known and/or succesful and have willfully “thrust themselves” into the public limelight to better themselves. In legal terms, this can be viewed as an “assumption of risk” – i.e. these players assumed the risk of slanderous statements as a result of their celebrity. For people like you and I (private figures), there is a much lower standard to satisfy and we would undoubtedly succeed in a libel/slander claim against Mitchell. Unforunately, that is not the case for Clemens and others.

I also agree with the actions of Clemens new lawyer – he did the absolute right thing by quickly emphasizing the weakness of the gov’s case through a public forum. From the record, it seems that the gov’s entire case is based on Hearsay evidence. While Munson pointed out that there were a number of “hearsay excpetions” which would be admissible in court, his example of “admission against interest” is incorrect. In order for a hearsay statement to be admitted as an “admission against interest,” the declarant (i.e. person who made the statement) must be unavailable. In this case, both witnesses are available for corroboration; therefore, the strength of their statements alone wont be enough to get into court. Instead, one of them would have to die (any takers???) or otherwise become available – then their statements could be used, by themselves, as authoratative evidence the accused.

Should be a fun legal battle, I’m certainly interested to see how it will pan out. I hope this cleared some stuff up for you guys. I know its not what everyone was hoping to hear, but its the law. If anyone has any more legal ?’s, I’ll be around. Stay tuned.
- Kevin23
  
  There are other theories as well other than libel. Defamation of character, tarnishment of his image, etc. Not sure what Texas Law is, but there could be state causes of action too. He just barely touched on the one thing…I believe I mentioned this very thing in a prior thread a few days ago as well. And he’s right, there are many shelters he could invoke in his defense in a civil litigation. But its hardly the whole story.
wfbtr&gldchn

So sorry, “Ben K” for my slip up. It said nothing about Petitte’s butt cheek, just that he was cheating like the rest of them. The guy did admit to administering steroids to Clemens, but you say that means nothing because he was being threatened with jail time. You obviously know nothing about investigation tactics. Threats are the name of the game. That’s how investigators get people to give up information that they otherwise would not.
- http://www.riveraveblues.com Ben K.
  
  You obviously know nothing about investigation tactics.
  
  Play nice around here. There’s no need for unprovoked personal attacks on other commenters or site authors.
wfbtr&gldchn

I’m just responding in kind to your accusatory tone in replying to my earlier comment. “Read the report. Then come back and comment.” Your words. Who needs to learn to play nice?
- steve (different one)
  
  Ben’s tone was a direct result of you printing lies on his site.
  
  if you are going to make something up and slander a Yankee player, you should be man enough to take what you get.
LLOYD BANKS

wfbtr&gldchn:

In defense of my-man Ben K, you apparently dont know anything about investigation tactics either. Sounds like you’ve watched one too many cop movies. Any evidence obtained during an investigation that was procured by threats, coercion, or otherwise, is IN-ADMISSIBLE.

This rational falls under the purview of the 5th amendment – right against self-incrimination.

Now, in your defense, i believe what you were trying to say is: plea-bargaining and negotiating is the “name of the game” when it comes to investigations… Now this, IS ok.

If it is determined that the trainers made these statements based on threatening statements made by gov officials, the aforementioned statements will not be allowed in ct. Obviously, if it was based on a mutual agreement in which the trainer(s) wanted to “come clean” and were concerned about their jail sentences, the evidence would be admissible.
- Kevin23
  
  There are also many exceptions to that. In most states, coerced testimony can be allowed at a judges discretion. Discretion to admit or deny evidence which has been obtained “unfairly”, in other words, in breach of the accepted rules of procedure. A judge will apply a test of what’s called probative value (ie proof value) against the prejudicial value (ie what damage has been done to the interests of the defendant) to determine if the evidence should be admitted.
  
  Basic crim pro my man.
- Kevin23
  
  Make that Civ Pro … my fingers outpaced my brain for a second.
  - LLOYD BANKS
    
    Its neither – its Rules of Evidence
    - Kevin23
      
      …which is a subset of procedure. Now we’re just playing semantics.
Mike P

Have a little respect for this forum and its authors. If you need to realise just how good this site is, try reading the comments from Pete Abraham’s blog without puking.
- steve (different one)
  
  try reading the comments from Pete Abraham’s blog without puking.
  
  truer words have never been spoken.
inman

thanks mike- thats why i read this site. other forums have a bunch of non thinkers leaving their first impressions and probably only semblance of thoughts and completely aggravate me
bkight13

How does Selig still have a job? He has been an absolute disgrace and this flimsy and limited report takes the cake. If baseball wants to move on they have to replace Bud immediately.
kris

Anyone still thinks Clemens will wear a RS cap on his HoF placque?
- barry
  
  Roger bleads Yankee Blue.
  - barry
    
    i spelt bleeds wrong, I should slow down on these Yuenglings.
MM

In 2006, Bob Costas had Bob Gibson, Willie Mays and Joe Morgan on his show on HBO, Bob Costas Now. They were discussing steroids in baseball. Bob asked all three of them if steroids were available when they were playing would they have taken them. Willie Mays and Bob Gibson said yes. They both explained that it all had to do with trying to get the extra edge. Now, if two of the best players in the history of the game say that they would have taken drugs to get better, I for one can’t doubt that most of the players in the last 10 years were taking steroids.
inman

very many think bud is bad- does anyone feel otherwise ?
waswhining

Isn’t there a difference between someone who takes steroids to aid in healing as opposed to someone who is seeking to change their body with them?

Just asking. It seems to me the former case becomes a medical use while the latter is something else again.

I don’t understand how a report gets issued that would not stand up in court — if a DA in houston tried to take roger or andy into court with this as their “evidence”, he’d get laughed out of texas.

Yet today andy and roger have their reputations trashed forever. Remember there are no receipts or documentation, simply the unsubtantiated testimony of a guy who is looking to get some get out of jail free time.

If roger and andy says it didn’t happen, I believe them… Of course if they played for the sawks I’d know they were pathetic liars. I know truth, justice, the american way and pinstripes when I see them…

I hope they sue Mitchell but I understand it would be futile.

I confess I don’t get any of this. Was there a point?
E-ROC

Why does ESPN continue to bury Clemens? As they talk about steroids, they always roll clips of Clemens pitching. He isn’t the only one mentioned in the report.

The MLB had a drug policy in place during the 80’s and 90’s, but they didn’t have a PED policy until 2003. So it’s really no shock that players got caught. It was legal in the MLB.

Naming names wasn’t necessary. Wasn’t the report suppose to be about how often the Steroids was used during that era and measures to use to prevent PEDs from running rampant in the sport?

Then there is the hearsay. Why run with the story when some of your sources were facing jail time? Then take their word gospel. That’s just unreal.
- Kevin23
  
  Then there is the hearsay. Why run with the story when some of your sources were facing jail time? Then take their word gospel. That’s just unreal.
  
  It happens in courts every day. Even in America. That’s why everyone hates lawyers until they need one.
Relaunch

Its funny to see all these responses defending Clemens. I’m pretty sure that if he pitched from May to October for either the Astros or Sox, no one here would be defending him.
Kevin23

ESPN obviously has nothing better to talk about. They are killing space by trying to kill a career. I loved on the first hour of reporting when they showed a loop of Clemons and Pettitte pumping iron in the weight room as they talked about the steroid problem. Sad, and almost disgusting journalistic priorities. They should be grilling baseball for not defending the position it obviously held that PED’s can be ok if between the player and a medical professional. Or they should be grilling the front offices for not cracking down across the board in a meaningful way. Nope…they attack the players for trying to win. Crazy.