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In his lawsuit, Clemens claims that McNamee defamed him by asserting that Clemens used steroids. For a variety of reasons (e.g., Clemens is a public figure; he will likely find it difficult to establish that McNamee is actually lying) I don't believe Clemens' lawsuit has much of a chance of succeeding. Nevertheless, as I explain in the column, the McCready accusation--which she claims is true--would probably prove difficult for McNamee to bring in, though there's a chance it could play a role in assessing Clemens' character. Hope you have a chance to check out the column and the ABC News story.
I was also interviewed on The Papa Joe Chevalier Show, which is aired on KLAV 1230 Las Vegas, to discuss Clemens' alleged affair and Josh Howard's admission that he smokes pot during the NBA's off season. It can be heard at this link and I'm on from 19:20 to 30:30. I was also interviewed by Ed Berliner of the Speeding Bullet Network on Clemens' various legal problems and it can be heard at this link.
Good to see you guys back after your blogger-induced blackout! Long time reader, and will be for as long as you guys are around. Keep up the great work, and hope the platform stays stable for you!
Doesn't your 609 analysis have trouble considering that any alleged statutory rape would have occurred well over 10 years ago?
Also, I'm not sure why the fact that Clemens is a public figure weighs that much in the analysis considering that McNamee is either lying or telling the truth? He either injected Clemens or he didn't. It doesn't seem like Clemens has to prove any heightened standard (actual malice), the fact that McNamee is lying, if proved, would seem to clear that hurdle?
Also, am I mistaken, or isn't the burden of proof clear and convincing evidence as opposed to just the preponderance of the evidence? Perhaps this might be where Clemens has a more difficult time meeting the standard as a public figure?
I agree with Anon. This isn't a situation in which the actual malice standard is really at issue. The typical scenario is that a reporter publishes something about a celebrity and the celebrity must prove whether the reporter knew it was false or acted in reckless disregard as to its truth or falsity. Clemens alleges that McNamee lied when he said he injected Clemens. If Clemens can prove that McNamee never injected him, then Clemens wins; he doesn't need to further prove that McNamee knew that he never injected him. The problem is that Clemens needs to prove a negative, and I'm not sure how he can possibly do that.
leaking the information can taint the jury pool. However, I think the biggest motiviation behind it might be to try to get Clemens' wife to turn against him. If anyone is going to have any real incriminating testminony, it could be a pissed off ex-wife. It could lead her to tell the truth (if he did) or possibly lie. Maybe not (the Clintons) but maybe. It's worth a shot.
Besides that, this has become a personal battle between them and it's become clear that no shots are too cheap. I doubt there was any real motive/dream to get this released into evidence, but it still was very strategic.
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