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Posted: Tuesday April 29, 2008 2:13PM; Updated: Tuesday April 29, 2008 2:13PM
Michael McCann Michael McCann >

McCready unlikely to be tipping point in Clemens' defamation suit

Story Highlights
  • It's unlikely a judge would admit eveidence of an affair in a defamation suit
  • The statute of limitations on statutory rape in this case has run out
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Roger Clemens
Roger Clemens already had a long-shot case against Brian McNamee in a defamation suit.
AP legal analyst Michael McCann has been closely following the Roger Clemens-Brian McNamee story since the release of the Mitchell Report late last year. Today he answers some key questions about what lies ahead for Clemens after a report that Clemens had a decade-long relationship with country star Mindy McCready that began when she was a 15-year-old aspiring singer.

How does this latest allegation affect Clemens' efforts to prove that McNamee defamed him?

Before considering the potential effects of this allegation, it should be stressed that Clemens' prospects for succeeding in a defamation suit are already slim.

First off, Clemens has to establish, by a preponderance of evidence (meaning "more likely than not") that McNamee's statements were untrue. Other than Clemens' vehement denials and portions of the testimony provided by Debbie Clemens and Jose Canseco, much of the available evidence suggests that McNamee is telling the truth. Indeed, the majority of the House Oversight Committee came to that conclusion in its decision on Feb. 27 to refer to the Justice Department the matter of whether Clemens perjured himself.

Even if Clemens can somehow establish that McNamee lied, he has the additional hurdle of being a public figure. Public figures who bring defamation suits must prove "actual malice," which means that Clemens must show that McNamee knew or recklessly disregarded the probable falsity of his damaging statements (as opposed to merely "should have known" their probable falsity, which is the standard imposed upon private-figure plaintiffs). The practical effect of actual malice is that public figures are much less likely to succeed in defamation suits.

Clemens must also show that McNamee's statements injured his reputation and exposed him to public ridicule. Here, Clemens would likely have an easier time, given the massive public rebuke he has experienced in recent months. It seems safe to say that his reputation is profoundly worse today than it was on Dec. 12, 2007, the day before the release of the Mitchell Report. Unquestionably, much of that damage can be traced to McNamee's statements. Clemens could argue that McNamee's statements (if untrue) should be considered "defamation per se": a statement so damaging of another's reputation that it is defamatory on its face. Still, Clemens faces a very difficult task in proving defamation.

So the allegation that Clemens had an affair with McCready has no bearing on the defamation case?

Not necessarily. If the case proceeds to trial, a judge would have to weigh whether an alleged extramarital affair by Clemens with McCready bears on whether McNamee defamed Clemens and, if so, to what extent the defamation injured Clemens' reputation and exposed him to public ridicule.

It is unlikely, though not implausible, that a judge would admit evidence of an extramarital affair by Clemens. If the danger of unfair prejudice posed by this evidence would outweigh its probative value in assessing Clemens' specific claims against McNamee, the judge would deem the evidence inadmissible.

Keep in mind, the nexus between Clemens' alleged extramarital relations and whether McNamee told the truth about Clemens' alleged use of steroids seems, on the surface, tenuous. Moreover, exploring the alleged affair in pre-trial discovery and during the trial would likely prove highly embarrassing for Clemens. Pre-trial discovery could include depositions of both McCready and Clemens, with extremely uncomfortable questions asked of their relationship, and the two could be posed similar questions under oath during the trial. A judge would weigh the probable effects of such experiences in whether to allow the extramarital allegation, and would likely conclude that the allegation should not be part of the trial. As a consequence, it is unlikely that McCready would testify in Clemens' defamation lawsuit against McNamee, as McNamee's attorney, Richard Emery, has suggested.

On the other hand, if Clemens' alleged affair with McCready occurred while she was a minor, there would be evidence of statutory rape, which refers to a crime whereby an adult had sexual relations with a minor who lacked the legal capacity to consent. Pursuant to the Federal Rules of Evidence, courts are generally barred from admitting evidence of uncharged criminal misconduct when such evidence is used by prosecutors to establish that a defendant acted in conformity with that character on a particular occasion. Evidence of uncharged criminal misconduct is more likely to be admissible for other purposes, however, such as in a civil claim. Nonetheless, the trial judge may still deem the evidence overly prejudicial and/or irrelevant to Clemens' underlying legal claims.

McNamee's attorneys would also argue that even Clemens if can succeed in establishing that McNamee defamed him, revelations of the McCready affair should significantly mitigate the damages. The basic premise would be that because of his extramarital affair, Clemens was already a persona non grata, even a pariah, and thus McNamee's damaging statements about him would have had little to no effect on his reputation.

The problem there, of course, is one of timing: Clemens would argue that almost all the reputational damage emanating from McNamee's statements occurred from Dec. 13 (the date the Mitchell Report was released) to the weeks following his and McNamee's Congressional testimony on Feb. 13 -- in other words, long before the McCready story broke on April 28.

Could Clemens face criminal trouble if he had a sexual relationship with a 15-year-old in 1990?

No. At this point, the statute of limitations for charging Clemens with statutory rape would have run out.

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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