Sports Law Blog
All things legal relating
to the sports world...
Wednesday, February 13, 2008
My Verdict

As I wrote earlier, this hearing was not going to be like the last one. We heard some tough questioning, though hardly skillful cross-examination; we saw previously obtained affidavits; we heard the opinions of differing medical experts; and we learned there were syringes and gauze that are yet to be examined for their authenticity and probative weight.

Now we can begin to deliberate.

What are we to make of the affidavits from Mr. and Mrs. Pettitte? According to Chairman Waxman’s opening remarks, this is devastating to the credibility of Clemens. But was it? Pettitte recalls that when he confronted Clemens with his prior “admission” of past HGH use, Clemens immediately said that was not what he had told him, that only his wife had taken the drug, and that he never did? That is certainly consistent with the testimony of Clemens today. And if he had previously admitted to such use to Pettitte, and if they were so close, why would Clemens deny what he had said five years earlier? I find it just as credible that Pettitte simply misunderstood Clemens’s earlier remarks but in good faith still believed he had accurately recalled what Clemens had told him earlier. Of course, the earlier conversation was before Mrs. Clemens had taken HGH but the questioning was not very sharp on this point. Mrs. Pettitte’s affidavit doesn’t add anything to the mix because all she knew was what Pettitte told her.

The syringes and the gauze are more troubling. If DNA testing confirms it is the blood of Clemens on an object laced with either steroids or HGH, these objects may be the equivalent of Monica’s blue dress. But the absence of a controlled chain of custody probably makes the evidence inadmissible in any criminal prosecution and the reason for that calls into question the probative value of the evidence. Why would McNamee keep such evidence and only of Clemens? Why did he not reveal such evidence to prosecutors breathing down his neck or to Mitchell and his staff but suddenly produced them after he admits he was furious at Clemens for playing their taped conversation and revealing to the public the details of his sick son? I find no credible answers to these questions that would allow me to trust the authenticity of the objects.

Finally, whose testimony had the ring of truth based on their body language and demeanor and motive for being deceitful? The one qualification we all have as jurors is our ability to assess the credibility of witnesses based on our experiences in every day life. But that is a tool with varying degrees of sharpness. All of us have rightly judged someone a liar but we have all also been deceived once or twice.

Here McNamee is an admitted serial liar not only to the authorities but also to the press, his friends and his employers. Clemens, on the other hand, certainly has greater motive to lie; his reputation and legacy have been placed on the line.

For what it is worth, I remain unconvinced of Clemens’s guilt. I would have to believe if Clemens did what he is accused of doing more evidence would be out there: records of his purchase of the illegal substances, medical evidence of his steroid use, the testimony of his trainers or close friends, something more than what we have. Given the amount of resources spent to uncover this evidence, and believe me too much money and time has already been spent, such evidence if it ever existed would have surfaced.

So I find in favor of Mr. Clemens. Tell me why I am wrong.


I respectfully disagree.

In every instance which is material, there is corroboration for McNamee's version of the events, the injections to Pettitte, Knoblauch, and even Ms. Clemens. Even the Canseco house, Clemens' nanny corroborates that Clemens was there, whereas just a week ago Clemens was saying he was nowhere near that house.

The attacks on his credibility are warranted but a mere sidelight to the true issue of who is telling the truth about Clemens being injected with HGH by McNamee. On that issue, Pettitte corroborates McNamee by saying Clemens admitted to it.

Most importantly, the prior statements by McNamee are only damning when viewed in a vacuum. Why were they inconsistent with his testimony under oath? Because he was trying to protect Clemens and the others. Criticism on that basis is merely doing what's convenient at the time. He has no motivation to make this up now, none.

McNamee was not evasive or rambling. For people to judge him for what he was not is unfair; he was an unlicensed trainer dealing in a world that others are not familiar with, yet critics expected a choirboy? No. He's was not and never pretended to be a choirboy.

Clemens showed the classic signals of desperation. He was hypothecating about what others were possibly thinking and avoiding direct answers to the hard questions. He should have just said "I don't know what Andy was thinking but I know that did not happen." Instead he thinks he was "misremembering?"

He sacrificed his friend Pettitte, and his wife.

Blogger qtlaw24 -- 2/13/2008 8:36 PM  

Wouldn't an educated person like you not yet render a verdict? Why would you render a verdict at this point? If you can't resist, could you at least qualify your verdict with a "..for now."? We're not yet in the bottom of the 9th, Mr. Milstein. I am glad you are not a judge.

Anonymous Anonymous -- 2/13/2008 8:36 PM  

Why i think clemens is guilty besides the fact that i thought he juiced before the mitchell report even came out.

- mcnamee had no motive to lie and every reason not to.

- pettitte and knoblauch said mcnamee told the truth about them.

- pettitte said clemens told him he was a user of HGH (most damaging), especially because they touted how pettitte had nearly an impeccable character

- clemens's wife took hgh in 2003 and roger never knew about it until now. how can anyone believe that?

- the doctor who said that an abscess like roger had on his rear is a common symptom of winstrol (steroid), and has never seen that from B12.

- Roger told the nanny that she didn't remember the party because "there was none" is very suspicious and smells like tampering.

- The nanny said the family slept at Canseco's house that summer.

Lying to police damages his credibility, even if he was protecting 15 yankees that might have gang-banged a woman.

I don't think lying to reporters damages his credibility because he doesn't have to tell the truth to them

Anonymous Anonymous -- 2/13/2008 9:11 PM  

I agree with anonymous. I just can not believe that Macnamee can call out pettite and Knoblach and clemens and is only right about 2 out of three. And how in the world would a housewife know about the effects of HGH, must less intimate to a trainer that she would like some without her husband knowing. It is almost comical.
Also, If macnamee is lying then shouldn't the committee now invesitgate Pettitte for perjury as he said Roger claimed to have used HGH. Even if you do not believe Mcnamee why would Pettitte lie about his friend and teammate?
None of this is conclusive, but come on, why would mcnamee lie? So he can go to jail, possible book deal? No way. Roger has every reason to lie.Mainly the hall of fame.

Anonymous Anonymous -- 2/13/2008 9:30 PM  

pettitte wouldn't want to say roger juiced unless he was 200% sure that's what roger told him.

Anonymous Anonymous -- 2/13/2008 9:36 PM  

Also, Pettitte claims that Roger told him he used HGH in 1999.

Then, in 2005, Roger told Pettitte that he misunderstood him and that Debbie used HGH, not him.

But, that timeline doesn't make sense because Debbie supposedly used HGH in 2003, for the SI photoshoot--not in 1999.

Anonymous Anonymous -- 2/13/2008 10:53 PM  

Blog entries like "My Verdict" only underscore what I've believed all along: skip the dog & pony show, and let's turn the whole mess over to the DOJ.

All yesterday accomplished was to give millions of people a close-up view of how the GOP operates, which come to think of it maybe wasn't such a bad thing. Nothing funnier in this world than watching the august colleagues of Larry Craig and Mark Foley calling a private citizen co-operating with their committee a "disgusting drug dealer" and "liar". Uh huh; now pull the other one, Congressman.

Anonymous Sick Dr Joe -- 2/14/2008 9:33 AM  

Notice that Dan Burton called McNamee a lot of things, but he did not call him a drug dealer. He probably refrained from that since his son was convicted for dealing pot in 1994.

Great television, but what a travesty.

Anonymous Glenn -- 2/14/2008 12:41 PM  

Andy Pettitte's testimony that Clemens told him he had taken HGH was simply wrong -- indeed, it is not possible that that conversation occurred. I believe the Committee knew this and intentionally misled everyone, by not releasing his deposition until after the hearing, not having him there live, and drafting a deceptive affidavit.

In his deposition, Pettitte said that he had the conversation with Clemens in 1999 (the offseason). BUT MCNAMEE UNEQUIVICOLLY STATED THAT HE FIRST INJECTED CLEMENS WITH HGH IN THE MIDDLE TO LATE 2000 BASEBALL SEASON -- 6-9 MONTHS AFTER THE SUPPOSED CONVERSATION WITH PETTITTE. So it is impossible that Clemens and McNamee told Pettitte in 1999 that Clemens was taking HGH. Pettitte is simply incorrect.

Further, the Committee tried to mislead everyone. While the deposition made it clear that Pettitte said he had the conversation during late 1999 (or at best early 2000), the affidavit said only "1999 or 2000", so people would not note the obvious contradiction.

All lawyers should condemn this unethical behavior by whoever on the Committee engineered this. If Pettitte had testified live, the inconsistency would have been obvious and Pettitte's testimony discounted. Instead, it is the most damaging evidence out there.

Blogger Mark -- 2/14/2008 12:46 PM  

You are not wrong - I wish you would call some of the radio talk show hosts or Daily News Live; it would be refreshing to hear some opposition. After I called in yesterday to a talk show they actually put it on television because I complained that these guys hadn't read Andy's deposition and were just saying the same old stuff without even reading the depositions. Bottom line - it would take an attorney to get through to them.

Anonymous Anonymous -- 2/14/2008 2:03 PM  

Would you take a trial this seriously if the judge and jury prefaced their statements to the defendant with "you're my hero"?

Anonymous Anonymous -- 2/14/2008 2:21 PM  

Let's be clear. The Congressmen were the lawyers in this show trial, although not very skilled ones. We are the judge and jury. And the trial is over so we have to render a verdict even if we feel the evidence is not in. That is what made the hearing so compelling. It was an excellent opportunity to try to understand how juries go about their business.

Blogger Alan Milstein -- 2/14/2008 3:04 PM  

McNamee's lawyer predicts Bush pardon for Clemens

Anonymous Anonymous -- 2/14/2008 4:38 PM  

McNamee's testified that he first injected Clemens with steroids in 1998, when Clemens was playing in Toronto, sometime after the barbecue that Clemens and his nanny may or may not have attened. So maybe it the difference between HGH and Steroids, but something was (allegedly) happening earlier with Clemens than 2000.

Blogger Howard Wasserman -- 2/14/2008 6:31 PM  

To believe Roger Clemens you have to believe that his personal trainer and "friend" injected a teammmate, (Knoblauch) his best friend and teammate (Petitte) and his wife with HGH all without his knowledge or even so much as a discussion on the subject.

In addition you have to further believe that Clemens, upon finding out that McNamee had injected his wife, and (at least) caused her some discomfort, reacted by....keeping McNamee as his trusted trsiner?

But, if you believe all the above, while I hesitate to believe Petitte, as he too has lied, in this case you have to wonder, what is his motive to lie and back up McNamee?

Oh, and then there is Clemens timeline of the events which is impossible -- off by about 2 years.
And the imperical evidence on the back of his baseball card that shows he had performance "jumps" at exactly the same time as the "alleged" injections occurred.

Lastly, if the injections were of lidocaine, as Clemens asserts, would anyone care to comment on why he would want a numb butt? (Lidocaine is a synthetic amide used as a local anesthetic.)

Anonymous David R. -- 2/15/2008 12:06 AM  

David R,

Yes, Lidocaine is used as a local anasthetic. However, lidocaine has other uses, as drugs often do.

In sports medicine, Lidocaine has been suggested to temporarily reduce muscle spasms.

Its also used to control irregular heart beat. (under the brand name Xylocaine)

I haven't heard what the reason for injecting Clemens was though.

Blogger Jimmy H -- 2/16/2008 9:09 PM  

Post a Comment