Failure to launch
Source: Clemens' legal strategy completely backfired
Posted: Thursday February 28, 2008 5:50PM; Updated: Thursday February 28, 2008 11:33PM
A person close to the House Oversight and Government Reform Committee with knowledge of its proceedings tells SI.com that Roger Clemens and his legal team made a devastating strategic blunder in regards to the now infamous Jose Canseco lunch party that took place in June 1998. The alleged blunder caused members of the committee and their staff to deeply question Clemens' veracity and the wisdom of his legal team's counsel.
Initially the party seemed like an unimportant fact. The party is mentioned only briefly in the Mitchell Report, on pages 168 and 169, and the mention concerns only McNamee's assertion that Clemens attended the party and that, for unknown reasons, Clemens met with Canseco and an unidentified person inside Canseco's house. The report does not expressly connect Clemens to steroids or HGH through his alleged attendance at the party.
Clemens' legal team, however, apparently regarded the mention -- which it insists is wrong -- as the primary point of vulnerability in McNamee's testimony, from which Clemens could impeach his former trainer's credibility and, more generally, the reliability of the Mitchell Report.
At one point, the tactic seemed to be working. When the committee interviewed McNamee about the party, some members and staff began to seriously question whether McNamee might be a serial liar. In the interview McNamee not only insisted that Clemens and his children's nanny were at the party, but he offered unusual and previously undisclosed narratives about what took place, most notably the assertion that Debbie Clemens and Jessica Fisher (then married to Canseco) showed each other the results of breast augmentation surgeries with other persons watching. McNamee's high level of detail, particularly about somewhat quixotic points, caused eyebrows to be raised. That was especially the case given (1) Clemens' exculpating physical evidence in the form of a golf receipt; (2) the sworn affidavits of Jose Canseco and Fisher asserting that Clemens was not there; and (3) the general skepticism of many committee members toward McNamee and his checkered past.
As the committee evaluated the depositions and available evidence, however, it began to conclude that McNamee told the truth at all times and that Clemens repeatedly lied. Indeed, McNamee seemed like a man resigned to his fate and with nothing to gain by lying. In addition it appeared both odd and inappropriate that Clemens' legal team refused to provide the name of Clemens' nanny and that Clemens called the nanny to meet with him before she spoke to members of the committee.
As an important caveat, keep in mind that if, in fact, Clemens lied under oath about the party, he would not have automatically committed perjury. Perjury requires that Clemens knowingly lied under oath. Clemens could argue that he innocently misremembered his whereabouts on a day that took place nearly 10 years ago, much like, in Clemens' view, Andy Pettitte innocently "misremembered" their conversations about performance-enhancing drugs. Whether a jury would believe him is another matter.
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.