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Monday, February 11, 2008
A Different View

Let me disagree with Howard. I think this week is the Super Bowl or should I say World Series of Sports Law. When Roger Clemens faces off against his accusers and testifies before Congress, all of us get to be jurors and render judgment on his guilt or innocence and on the quality of the work of the DLA Piper lawyers who served as prosecutors.

This will not be like the last Congressional hearing which was devoid of any tough questions or hard evidence. The post-Mitchell Report activity of Clemens--whether ill advised or not--has raised the stakes so that his integrity and legacy (read that Hall of Fame nomination) will be on the line this Wednesday.

For the 20 million dollars MLB reportedly spent for the Mitchell Report, it received a product that was, in my view, underwhelming. While it accused 90 or so players of taking currently banned substances, except for Clemens, most were lesser lights or already retired and hardly proved baseball and the free world were so infected by the steroid plague that a Congressional hearing was justified. And the supporting evidence Mitchell and his team gathered was embarrassingly weak, relying on the untested word of two locker room trainers, both of whom had incentive to appease the authorities and name big names.

Now Congress has had time to send out its own investigators armed with the one tool Mitchell did not have, subpoena power. If any corroborating evidence is out there, we should see it Wednesday. Whether it takes the form of documents like medical records or testimony of witnesses such as Pettitte or other confidantes of Clemens, definitive and probative evidence should exist and be available if Clemens did what Mitchell and McNamee claim he did.

What this also means is if no such evidence is produced and we are left with Clemens’s word against McNamee’s, then we should render Clemens innocent of the charges and give him back his good name. Not just because, as he said on 60 Minutes, he deserves it for his years of proving he is one of the great pitchers of all time, but because “facts are stubborn things” such that if Clemens engaged in this activity he would have left proof of it in some form other than the word of McNamee.

With all the serious issues facing this country, Congress has chosen to conduct this show trial on what I see as a nonissue. So be it. Now either throw strikes or walk off the mound.


This country has been at war in multiple locations around the planet, costing thousands of lives and billions of dollars with no end in sight. Is the governing body of this country seriously spending its time on baseball?

Anonymous Anonymous -- 2/11/2008 3:17 PM  


Anonymous Anonymous -- 2/11/2008 4:46 PM  

I agree that there is subpoena power here that Mitchell did not have, which has the power to deliver better evidence. I do not criticize the Mitchell Report because without subpoena power its merely voluntary disclosure of facts which is not a very good vehicle for candid disclosures.

However, it all comes down to how Congress decides to utilize the subpoena power. Given the very short timeframe, I have serious doubts that the committee has utilized subpoena power to its fullest extent (demands for all documents, cellphone records, depositions of independent 3rd parties).

The information regarding Clemens' "get to know" rounds is sickening. If the committee members are supposed to be the arbiters, there's nothing worse than the "appearance of impropriety", which Rep. Towns has violated.

Blogger qtlaw24 -- 2/11/2008 7:51 PM  

Finally, a voice of sanity!

At this point, we have only McNamee's word that Clemen's violated the steroid ban. It is very disturbing that some many people are willing to simply take his word for it. He is, after all, trying to avoid Federal jail time by throwing Clemons under the bus.

But why the rush to take McNamee's word as revealed truth? That's what most of the sports media has done. They have said that McNamee had nothing to gain by lying--I guess you're the only one who remembers that McNamee is facing jail time. The media needs to be reminded of that little fact, and asked again, "why are you taking his word for it?" Let the record show I'm not a baseball fan--I don't really care if Clemons makes the Hall of Fame or not. I do care about destroying someones reputation based on little or nothing.

McNamee's alleged "evidence" would not be admissible in any court, since there is no way to prove that he didn't simply manufacture it himself. The rest is all hearsay. That and a dollar will get you a beer.

Blogger zak822 -- 2/12/2008 1:20 PM  


There is no hearsay here. If McNamee testifies that he personally injected Clemens using a syringe that he knew contained steroids, that is *NOT* hearsay. That is, rather, the very model of trial evidence: Testimony by a witness with first-hand knowledge of what happened in the real world. To the extent there are credibility problems, that comes out and gets considered by the fact-finder. But as anyone who has ever been convicted on the strength of a co-conspirator's testimony can tell you, cross-examination for bias only goes so far.

Blogger Howard Wasserman -- 2/12/2008 1:40 PM  

I think Zak meant the physical evidence recently submitted ie. syringes, vials, cotton etc.
Not sure if thats hearsay but surely you have a chain of custody problem.
I want the $1 beers

Anonymous Anonymous -- 2/12/2008 4:53 PM  

Howard, anonymous has my perspective right. I said the evidence would not be admissable. Much of the rest may not be hearsay, but it is certainly uncorroborated by anything beyond McNamees word. It's hard to take that as gospel.

Which takes me back to my larger point. Why is everyone so eager to take McNamee's word for it?

Anon, $1 beers at my local watering hole, LaBatts on tap, $1 per 12 oz draft. 2 widescreen HD TV's. Great place for Sunday football or hoops! Sometimes Dee, the very pretty bartender, will put on baseball games, too.

Blogger zak822 -- 2/13/2008 12:42 PM  

Zak: You said the physical evidence is not admissible and "the rest is hearsay," suggesting that the rest is worthless (unless coupled with $ 1 at certain bars). My response was that the rest is not hearsay and thus not worthless, even if we throw out the physical evidence.

Plus, I am not as certain as you are that the physical evidence would be inadmissible. And it is not rendered inadmissible simply because all we have is McNamee's word. The ordinary way to establish that some evidence is authentic is through witness testimony; other non-testimonial corroborating evidence is not necessary. Plus, the standard for establishing that some evidence is admissible is very low. Now, you obviously do not believe McNamee. But some people do, so his testimony might be enough.

Blogger Howard Wasserman -- 2/13/2008 5:42 PM  

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