1st pitch in Rocket suit
ROGER CLEMENS’ lawyers earned the right to say the former Yankees star didn’t lie to Congress about doping when a Washington jury acquitted the seven-time AL Cy Young Award winner of perjury charges last week. But can Team Rocket get away with calling Clemens’ chief accuser a “psycho” who “made up a bunch of evidence” in an effort to “shake Roger down”?
That’s the question raised by the defamation lawsuit filed nearly three years ago in Brooklyn federal court by Brian Mcnamee, Clemens’ longtime trainer and his chief steroid accuser in the Mitchell Report. U.S. District Court Judge Sterling Johnson has scheduled a status conference for Wednesday about Mcnamee’s long-simmering complaint that seeks millions of dollars from the man who used to pay him $5,000 a month for personal training.
“The government had a much harder case than we do,” says Richard Emery, one of Mcnamee’s attorneys. “In fact, it makes our case easier because so much of the evidence is out there. . . . He might end up with a jury verdict that says that he did use steroids.”
In the criminal trial, the government had to prove its case beyond a reasonable doubt, a higher standard than the lawyers in the civil case will have to meet. Peter Keane, a law professor at Golden Gate University, says that will work in Mcnamee’s favor.
“You have a different set of rules,” Keane says. “All they have to do is prove their case with a preponderance of the evidence.
“The government had to run a marathon to prove its case. Mcnamee only has to run a half-marathon.”
Emery says he hopes to question Clemens under oath in a deposition. He also wants to get testimony from Andy Pettitte and Debbie Clemens, both of whom took the stand in the criminal trial.
Rusty Hardin, the Houston lawyer representing Clemens since 2007, did not return requests for comment. Johnson is expected to set a schedule for the case at Wednesday’s hearing at the Theodore Roosevelt Federal Courthouse in Brooklyn.
Emery said he wants to unravel the mystery of a surprise twist at the Clemens trial — Pettitte’s waffling about a conversation he’d had with Clemens about HGH in 1999 or 2000. Pettitte had previously sworn that Clemens told him about using HGH, but when Pettitte was asked at the trial if his certainty was only “50/50” on that matter, he answered yes.
Emery could also depose Pettitte’s wife, Laura, who also provided a 2008 affidavit about the conversation to Congress. Her testimony was barred from the criminal trial.
U.S. District Court Judge Reggie Walton, fearing guilt by association, also barred prosecutors from telling the jury that Pettitte and Chuck Knoblauch said McNamee told the truth about injecting them with banned drugs. Keane says there’s a good chance Johnson will let that testimony be admitted.
Clemens fired the first shot in this legal war i n January of 2008, claiming in a lawsuit that McNamee had defamed him by telling Mitchell and federal authorities that he had supplied and injected Clemens with steroids. That suit ultimately was dismissed.
McNamee fired back in 2008 with a suit in New York state court that was moved to federal court, where it survived Clemens’ motion to dismiss it in 2011. The suit says Clemens’ lawyers acted as his agents in a “defamatory public relations campaign” that ruined McNamee’s livelihood and reputation.
Among the statements the lawsuit identifies as defamatory are claims Hardin made accusing McNamee of extortion and of being unstable. In 2008, after learning federal investigators had seized medical waste from McNamee — needles, bloody gauze and cotton balls that contained traces of steroids as well as the pitcher’s DNA — Hardin said McNamee had “fabricated” it in an attempt to “ruin Roger.”