Clemens faces a long year in court (cont.)
About 1,400 miles from the grand jury proceeding rests U.S. District Judge Keith Ellison's chambers. Ellison is hearing Clemens' slander lawsuit against McNamee. To prevail, Clemens must show by a preponderance of evidence (i.e., more likely than not) that McNamee's statements were untrue, injured Clemens' reputation and exposed him to public ridicule. As a public figure, Clemens has the added burden of showing that McNamee had actual malice (essentially meaning knowingly lying) when claiming that Clemens used steroids. If Clemens prevails, he would be awarded monetary damages and would receive a legal boost, though his criminal proceedings remain separate.
Unfortunately for Clemens, Judge Ellison recently dismissed most of Clemens' case against McNamee. Ellison has excluded statements made by McNamee to the Mitchell Commission and to Sports Illustrated's Jon Heyman. The primary basis for the exclusion is that the statements took place in New York and there is a lack of personal jurisdiction between McNamee and Texas for those statements. Put differently, Ellison concluded that his court in Texas lacks the authority to sanction McNamee for his actions in New York.
As a separate source of authority for excluding McNamee's statements to the Mitchell Commission, Ellison has cited relevant Texas law holding that statements made to government agencies in relation to legislative, judicial, and quasi-judicial proceedings are entitled to absolute immunity. In part because Assistant U.S. Attorney Matthew Parrella warned McNamee that his status as a mere witness was at least in part contingent upon McNamee truthfully speaking with the Mitchell Commission, Ellison has provided immunity to statements made by McNamee to the Mitchell Commission.
The intriguing nature of the Mitchell Commission -- a private group that received the tacit aid of the government -- presents something of a challenge for assessing whether it should be classified as an immunity-qualifying proceeding. Members of the Commission were not acting on behalf of any jury, judge or government agency, nor were they bound by the Federal Rules of Evidence. Instead, they could rely upon the testimony of disreputable persons as well as hearsay and innuendo. On the other hand, some persons interviewed by the Commission did so with the understanding that refusing to truthfully testify could subject them to criminal prosecution. McNamee was such a person.
A portion of Clemens' case remains. McNamee's statements to Andy Pettitte in Houston between 1999 and 2004 have not been excluded because, according to Ellison, a reasonable jury could interpret those statements "in a variety of ways, based on the witnesses' credibility." In an affidavit, Pettitte claims that McNamee told him that he injected Clemens with performance-enhancing drugs. Clemens could thus still prevail because of McNamee's claims to Pettitte.
Still, the bulk of Clemens' case was dismissed and the already slim likelihood of him prevailing has fallen further. Granted, Clemens' lawyers have asked Ellison to reconsider, but it is highly unlikely that he will. Ellison will likely respond to Clemens' lawyers within the next month, after which a trial could be scheduled for later in the year. Ellison has already ruled that McNamee's statements to Pettitte can be heard by a jury, meaning Clemens should be able to proceed even if Ellison doesn't change his mind.
It remains to be seen whether Clemens would want to proceed on a case so diminished that it would be based entirely on McNamee's statements to Pettitte, Clemens' friend. Theoretically, Clemens could seek a separate slander trial in a New York court to address McNamee's statements to the Mitchell Commission and to Heyman. Ellison dismissed Clemens' claims concerning those statements because they occurred in New York. Ellison's dismissal was made without prejudice, meaning those claims could be filed in New York, but there is no indication that Clemens plans to file a second lawsuit. Such a lawsuit could be blocked by New York's one-year statute of limitations for slander claims, though in assessing the statute of limitations, a New York judge might consider McNamee's decision in December 2008 to file notice preserving his claims under New York law against Clemens.
SI.com legal analyst Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is a former chair of the Association of American Law Schools' Section on Sports and the Law.