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Clemens stands tall (cont.)

Posted: Wednesday February 13, 2008 7:52PM; Updated: Thursday February 14, 2008 8:36AM
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4. Clemens overcame Congressman Stephen Lynch's alleged medical evidence.

In an attempt to introduce a possible "smoking gun," Congressman Stephen Lynch offered into the record sworn comments by Dr. Mark Murphy, described as one of the country's leading experts on MRI imaging. With the appropriate caveat of not having personally examined Clemens, Murphy contradicted Clemens' description of an injury that Clemens attributed to a vitamin B-12 injection. As described by Lynch, Murphy characterized the injury as more consistent with a steroids injection. He also stated that he had never seen such an injury caused by B12.

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Clemens forcefully responded by citing a competing study conducted by Dr. Bert W. O'Malley of the Baylor College of Medicine, who reached the opposite conclusion: the MRI reveals no steroids use. Clemens also suggested that may have simply received a "bad shot" at the hands of team doctor Dr. Ron Taylor. Though he did not have the floor, Congressman Davis surprisingly interjected on Clemens' behalf, stating he did not believe it was appropriate for Clemens to answer medical questions.

At the very least, Clemens provided ambiguity in response to Lynch's evidence and seemed to take the edge off the evidence's incriminating implications.

5. Clemens appears to have benefitted from his private congressional meetings last week.

In an attempt to develop rapport with committee members prior to Wednesday's hearing, Clemens met privately with several of them last week. Though we do not know the specifics of the meetings or the identity of every member with whom he met, several members seemed highly defensive of Clemens. Congressman Burton, for instance, called him a "titan in baseball" and repudiated McNamee -- who did not receive an opportunity to meet individually -- for trying to destroy Clemens' reputation, which Burton fears has already suffered irreparable harm. Unlike McNamee, Clemens also received several softball questions, perhaps none better than what motivates his success. Congressman Davis' vehement advocacy on behalf of Clemens while pressed by Congressman Murphy also seems suggestive.

As a separate point, DLA Piper partner Charles Scheeler, who assisted former Senator George Mitchell in preparing the Mitchell Report, received a number of difficult questions about the quality of evidence relied upon by the Mitchell team -- with the implication that the evidence implicating Clemens may not be strong.

6. Despite some success during Wednesday's hearing, Clemens leaves questions unanswered.

Clemens failed to cogently explain why, on three previous occasions, he told the committee that he never spoke with McNamee about HGH and yet he admitted that he did so upon learning about his wife, Debbie Clemens, purportedly used it. Though I doubt the committee will pursue charges for this discrepancy, Clemens arguably perjured himself with those contradictory responses, with the caveat that Clemens may have interpreted the earlier questions about HGH as in reference only to him (and not to his wife).

Clemens also failed to fully explain why he told Mike Wallace of 60 Minutes that his lawyers dissuaded him from speaking with the Mitchell team but then told the committee that he didn't even know Senator Mitchell was seeking to interview him. Clemens' explanation implied that neither the Players' Association nor his agents told him the details of Senator Mitchell's inquiry, though that explanation seems substantively different from what he told Wallace. Perjury is not at issue here, since he was not under oath while on 60 Minutes. His believability, however, is.

7. Major League Baseball and the Mitchell Report took some hits

As the hearing progressed, it became clear that many committee members questioned the Mitchell team's wisdom in relying so heavily upon the likes of McNamee. Building on that skepticism, Congresswoman Virginia Foxx wondered why the Mitchell team would characterize its case against Clemens as one based on "evidence" rather than "allegation," while Congressman Shays bluntly declared that "this is not a document that sends people to jail." In addition, several committee members were confounded why Major League Baseball, with all of its wealth and resources, would fail to uncover McNamee's past transgressions and misuse of a Ph.D. before hiring him.

The Mitchell team's reliance on the best recollections of those whom they interviewed also drew concern. After all, if nothing else, Wednesday's hearing revealed that despite their best efforts, people are prone to errors when recollecting past events.

Given these doubts, the committee could call additional hearings to re-examine allegations contained in the Mitchell Report, particularly if enough committee members disbelieve the Report's description of Clemens, since that may suggest that other portions of the Report may be similarly distrusted. Such a hearing would be most unwelcomed by Mitchell, his team, and baseball commissioner Bud Selig.

In defense of the Mitchell team, however, consider that but for Clemens, the Report has not drawn rebuke. Just the opposite, actually, Pettitte and Knoblauch have admitted the Report's accuracy, as have Brian Roberts and Gary Bennett. Perhaps more revealing, there has been a striking absence of denials from other players named in the Report. Though silence may not equate to admission, it certainly seems more akin to admission than disapproval, particularly when careers may be irreparably tarnished by inclusion on the list.

8. What happens next?

Though several members expressed relief upon hearing that committee leadership has no plans to conduct any additional hearings, it is possible, given the concerns raised in the previous answer, the committee may ultimately seek to revisit the merits of the Mitchell Report. That possibility, however, seems unlikely, particularly given the expressed desire of several members for their committee to move on.

As to Clemens and McNamee, every member of the committee, like all of us, knows that at least one of them is lying. To the extent the committee would like to resolve that question, it could continue its own investigation or ask the U.S. Department of Justice to investigate whether either or both committed perjury or obstruction of justice. Further investigation could reveal, for instance, if McNamee's alleged physical evidence has any probative worth. If the Justice Department were to eventually conclude that perjury or obstruction of justice likely occurred, then it could seek a grand jury indictment, which would require a grand jury to identify probable cause, meaning "more likely than not."

If, instead, the matter is over, then we will never know who's telling the truth, if anyone is.

Michael McCann is a law professor at Mississippi College School of Law and Chair of the Association of American Law Schools' Section on Sports and the Law.

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