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________________
Roger Clemens Is he about to find out the
difference between merely lying and committing perjury? _______________ “
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Behind the Clemens Hearing (FEB-16-08) During the Hearing Republican
Representative Mark Souder alerted us that a great deal more was covered in
the depositions which would be released to the public, and he added, “I would
argue that those depositions are fairly devastating.” So I read them –
hundreds and hundreds of pages – and I agree with his assessment. In fact, as
the depositions were given under penalty of perjury, it seems as if a
compelling case could be made for charging Roger Clemens with perjury. But before getting into this
behind-the-scenes material, a couple side-bars. First, a few questions I
wished were asked at the hearing: Mr. Clemens, help me with a
little role-playing here. Hypothetically – purely hypothetically – let’s say
you know your good friend Andy Pettitte was using
HGH. Now let’s pretend I am a reporter from the New York Post and I ask you
about it. What would you tell me? Now, Mr. Clemens, same
scenario, but this time I am in a position where you have to answer under
threat of criminal prosecution, and I appear to know the truth, or am close
to it. What would you tell me? Mr. Clemens, will you please
answer the actual question? (Roger is good at this dance, and you have to stay
after him. For example, Roger was asked why he has told the Committee numerous
times that his agent never gave him the two requests for appearances before
Senator Mitchell or his investigators, but in his Sixty Minutes interview he says he did not cooperate because, “I
listened to my counsel. I was advised not to.” Asking to him explain this
discrepancy was a good question and deserved an answer.) As a follow-up to what was predicted in
the previous column, the document released by agent Randy Hendricks that
tries to mislead folks into believing Clemens aged normally, compared to other
great pitchers, has been a bust. The ultimate death blow was a story by the New York Times featuring opinions from
four statistics professors who concluded that Clemens’ aging pattern was
abnormally good, even among the 31 most durable pitchers of the last 40
years, and that: “Our reading is that the
available data on Clemens’ career strongly hint that some unusual factors may
have been at play in producing his excellent late-career statistics.” Clemens’ lawyer Rusty Hardin has taken a
lot of shots for mishandling the job before him. The temptation is to simply
dismiss him as the grandstanding pinhead he appears to be, but no one gets
the reputation he has as a lawyer without being good at it. I think the
problem is that even though he understood the task was to protect Clemens’
reputation and legacy, he has not been able to escape the courtroom habits
that have shaped him, and thus he has been a poor choice to represent his
client wisely in the very different court of public opinion. Really, the head of the Clemens’ team
should have been an exceptional PR man from day one. A lot of lawyers like to
think of themselves as PR men, but they are not quite the same species. I
actually think a lawyer tends to be more blustery and outrageous than a PR
man. The lawyer tends to think more of his arguments will sell, and he
worries less about the negative impact if his pitch doesn’t work. Why?
Because the lawyer is used to selling to an audience that feels an obligation
to be fair – judges and juries - and knows that they will at least try to let
him and his client start off even in his next sales pitch. And more
important, the lawyer is used to how the high standards of the court as to
what it will accept as the truth, also means it has very lax standards as to
the amount of crap it will tolerate as plausible. The PR man, on the other
hand, counts far less on getting the benefit of the doubt, and he is less
willing to risk having his spin fail, or at least he is more cautious in
taking that risk. Rusty Hardin the lawyer will
forget he is doing PR and will argue that Clemens has no obligation to
provide a motive for why McNamee would tell the truth about injecting
performance enhancing drugs into Mr. Knoblauch and Mr. Pettitte,
but lie about doing it to Clemens. But the PR man would immediately see how
essential that is to preserving Clemens’ legacy in the court of public
opinion. Rusty Hardin as the inexperienced PR man
will have Clemens spend several days before the hearing visiting every member
of the committee. A true PR man would say, “No, that has the potential to
help, but it will be reported on, and it will look like Roger is trying to
influence his hearing. Worse, it could be a real disaster if a Committee
member makes it clear that Roger was lobbying and discussing matters directly
pertaining to the hearing.” Clemens’ team mostly dodged the latter bullet,
although Representative John Mica’s friendly questions twice referenced
things Roger had personally told him, with Mica literally prefacing both
remarks with “You told me …” A Rusty Hardin will revert back to lawyer
mode and argue that in a legal sense it was not improper for Roger to speak
with his former nanny before answering the Committee’s request for her name.
(Actually, the Nanny’s deposition makes it clear that even by legal standards
this was not handled appropriately.) But regardless, the PR man would have
immediately recognized that the court of public opinion would never buy that.
Indeed, in an ESPN Sportsnation poll where 67,000
people had an opinion on whether they considered it improper or not, their
response was better than 8 to 1 that it was improper. And trying to do both jobs at once can
lead to judgment that is not worthy of either a PR man or a lawyer. This is
Rusty Hardin’s attempt at damage control with the media about Roger’s
intervention in talking with the Nanny. This woman is a lifetime
friend of the family… She’s still very close to them … We had two
investigators, the same ones [we’ve] been involved with, interview her at
Roger’s house, away from Roger. All Roger did that day was greet her at the
house, and said, “These guys would like to talk to you,” and then they went
in their interview room. That’s just sad. If you read the nanny’s
interview with the Committee you learn that being a “lifetime friend of the
family” means she was employed for 13 years by Clemens and being “still very
close” means the last time they had spoken was 2001. By her own account she
was not asked to come speak to Clemens’ investigators but to talk with Mr.
Clemens. By her own account, Roger does a heck of a lot more than just greet
her at the house. Intentionally or not, he coaches her to match the key point
of his deposition. She says quite clearly that in their conversation that Roger
told her he was not at the party. Before leaving the court of public
opinion where Rusty Hardin and the rest of the Clemens’ crew have performed
so abysmally, here’s the latest results. On a a large poll on ESPN Sportsnation that began after the hearings, they now have
88,000 respondents. A ratio of 4 to 1 now believe
McNamee over Clemens. Better than 2 to 1 they believe Clemens should be
indicted on charges of perjury. The poll had one particularly interesting
question which tried to separate out the folks who either changed their
opinion based on the Hearing or had not previously formed an opinion on
Clemens’ guilt or innocence. Of those 21,000 respondents, a whopping 81% say
they now think Clemens is guilty.
Okay, thank you for your patience. Here’s
what I see as the highlights of the stuff not covered in the hearing.
Besides the depositions and affidavits there are transcripts of two tapes.
One is McNamee’s call on In the depositions it is interesting to
see for sure that there was no equivocation by Chuck Knoblauch in confirming
that what McNamee told Senator Mitchell about injecting him with HGH was
accurate: Q [reading from the Mitchell Report] … the next
sentence, “beginning during spring training and continuing through the early
portion of the season, McNamee injected Knoblauch at least seven to nine
times with human growth hormone.” That's absolutely accurate? Knoblauch: That's accurate. At least seven to nine times,
yes. So, with Pettitte
already being equally clear, this means that the two players besides Clemens
that McNamee claimed to inject with performance enhancing drugs (PEDs) have
now admitted under penalty of perjury that McNamee had told the truth about
those injections. What I found really fascinating in the
depositions were the very serious questions being raised about Roger Clemens’
claim on Sixty Minutes that McNamee
was injecting him with B12 and lidocaine. (His
deposition puts the total of B12 injections from McNamee at 4 to 6, and one
injection of lidocaine in his lower back.) Indeed,
the dishonesty of Clemens’ deposition in this regard is so outrageous one
could make a case for perjury on this issue alone. McNamee in his deposition and in the
hearing is clear that he never injected Clemens or anyone else with B-12 or lidocaine. So the Committee asked Knoblauch, Pettitte, and C.J. Nitkowski,
all of whom were trained by McNamee, if he had ever injected them with B12 or
lidocaine or had even heard of him doing this with
someone else, outside of Clemens’ allegation. All three answered no, and no. So the Committee asked team trainers,
assistant team trainers, and team doctors that worked with McNamee. Not a one
had direct knowledge of such an occurrence or had even heard of McNamee
injecting someone with B12 or lidocaine – other
than Clemens’ allegation. Clemens own deposition was extremely
misleading and at times outright dishonest in talking about how common B12
shots were in the game, how often he had had B12 injections, and who gave
them to him. For example, in Clemens’ deposition he indicates receiving
multiple B12 shots in each season in The team trainer in those seasons, Tommy
Craig, told the Committee that B12 as injections were not common among the players, that only the team doctor, Ron Taylor, did any
injections, and that he, Craig, had not injected Clemens with anything, and
that was repeated by the assistant trainer as well. Dr. Taylor told the
Committee he had given only two B12 injections to a ballplayer in his whole
career. Clemens was one of the two, and stated that he gave Roger just one
injection of B12 in those 2 seasons with In his deposition Clemens continually
tries to give an impression that it is not unusual for a team trainer to give
him an injection and he volunteers that Clemens: … last week we had the elite
camp, which my son's involved in, the league camp that goes on for a week.
And Dave LaBossiere [Head Trainer of Astros during
Clemens’ tenure] … when I was there and just told me, good luck through
everything, that we're behind you on this, and all that. He told me that, you
understand that I've given you more than -- I don't know if he said B12, but
more of a pain shot, I believe is what he said, when a doctor wasn't present.
And so you get a doctor that wasn't present and that he gave to me. However, LaBossiere
told the Committee he had never given a B12 shot to anyone, ever, and that
the team doctor gave nearly all the injections, although technically a
trainer can do so at the Doctor’s direction. When asked directly: Q So you've not given Mr. Clemens an injection? LaBossiere: I have never given him an injection. I’ve been in a few major league
clubhouses and training rooms over the years, and I was stunned to read in
Clemens’ deposition his claim of how easy it was to get B12 shots from the
team personnel – which appeared to also be offered as a possible explanation
of where McNamee got the B12 that Roger claims McNamee injected into him. Hardin, Attorney for Clemens: Create a visual scene for them, how shots are
handled. Clemens: Yes, a B12 shot. And the same way McNamee after a game, and I am
passing the room, and I told him, you know, that I need a B12 or the doctor,
whatever, and there is four or five needles already lined up ready to go. And
you get it in your shirt or you pull your jeans down, and they give you a
B12-shot, and you are out the door. … Q You did mention earlier, you described a situation where I think
you said you saw needles with B12 kind of laid out? … Which team -- did you
mention which team that was? Clemens: I think that was Now let me say that compared to Toronto
and Houston, the Yankees appear to have been more lax in meticulously
recording injections and were more willing to allow the head trainer to do
injections under the direction of the team doctor, but Roger’s description was
just too outlandish for me to believe, and when I read Gene Monahan’s
interview with the Committee, he was equally flabbergasted by such a
description. (Monahan is one of the most experienced team trainers and was
the Head Trainer of the Yankees during Clemens’ tenure.) First, Monahan said
he could remember giving Clemens just one injection during his six seasons in
NY, and it was not B12 but a light dose of Toradol
(anti-inflammatory medication). He also did not know of any other Yankee
medical personnel giving Clemens a B12 shot. And then we have this
interesting exchange. Q We've been told of a specific event in
which a player walked by the trainer's room and observed what was described
as a row of -- of B12 shots, loaded syringes ready to provide to players
after a game. I don't have the -- the exact words in front of me. But
essentially they were described as lined up and ready to go. Can you describe
if the way you -- could that -- could that have occurred? Is that the way you
prepare medications? Monahan: A I have no knowledge of that, and I can't conceive that
that could have occurred. And I have just no recollection of that ever being
the case with me and with our ball club. … Q Okay.
You said you can't conceive that it could have occurred. Why not? Monahan:
Because I'm in charge of keeping this medication locked up. And when it has
to be done, and I prepare it, along for and with the team physician, and I am
never -- I can't remember ever doing business that way. Q Could
it have occurred with any other injectable medications, this type of scenario
in which several -- a number of syringes were lined up ready to go? Monahan: Syringes? No, sir. Going through the depositions, the single
lidocaine injection that Clemens claims McNamee
gave him for his back pain also seems questionable and unlikely. I’ll spare
you lengthy details on that except to note two things: (1) that Clemens’
claimed that the beneficial numbing effect of this shot lasted for two days,
while team doctors noted that the pain relief from lidocaine
lasts no longer than 3-4 hours; (2) That Clemens was pleased with the relief
he got – “it did give me comfort in my lower back” – but he could not explain
why, when he continued to have back pain off and on throughout his career, that
he never got another lidocaine shot in his lower
back from McNamee or anyone else, and never even discussed this treatment
with other medical personnel who worked on his back.
But the real killer in the depositions is
the deposing of a decent, honest man who clearly had no wish to harm a
long-time friend but would not lie or obfuscate in the form of “I don’t
remember” or “I don’t have a clear recollection of that” or “I may have
misunderstood.” As Andy Pettitte finished his
deposition, Phil Schiliro, chief of staff for the
Committee chairman, Henry Waxman, said:
And it's also important that
you know -- and this should be on the record as well -- that in the 3 years
that we've -- we've done this investigation, I don't think we've had another
player who's been more forthcoming than you have … The degree to which Pettitte’s
deposition is discussed in the Hearing had nowhere near the impact on me than
I got from actually reading his deposition and linking up the corroboration. In his deposition Andy Pettitte has a clear memory that in 1999 or 2000 that
Roger Clemens told him he was using HGH. Pettitte
says he was under the impression that Brian McNamee was the source of
Clemens’ HGH, and right after Roger told him this, he mentioned it to
McNamee, and that McNamee was angry that Roger had said that, because it was
supposed to be confidential. McNamee was deposed 3 days after Pettitte and has roughly a similar memory of Pettitte telling him that Roger told him he was taking
HGH. McNamee’s recollection places the conversation in the off-season between
2000 and 2001 and includes his being “annoyed” at Roger for telling Pettitte. Asked again under oath in the Congressional
hearing, McNamee again confirmed Pettitte’s
account. When Pettitte
was asked if he told anyone else about this at the time, Pettitte
thought he had told his wife, Laura. After his deposition, Andy spoke with
his wife, and she remembered Andy telling her this back in 1999 or 2000 and
stated so to the committee in a signed affidavit, stating under penalty of
perjury that this was true and correct. In his deposition Pettitte
also has a clear memory that in 2005, at the time of the Congressional
hearings with McGwire, Palmerio, Sosa, and Canseco,
that he asked Roger, “What are you going to say if any of the reporters ask
you if you had ever used HGH?” When Roger asked what he was talking about, Pettitte recalls that Clemens said he (Roger) had not
told him that, that Pettitte had misunderstood,
that Roger had said his wife Debbie had used HGH. Pettitte did not believe
he misunderstood him back in 1999-2000 and this was the first he had ever
heard of Debbie Clemens using HGH. What Pettitte
didn’t know in giving this deposition is that both Clemens and McNamee were
in agreement that Debbie’s experiment with HGH was in 2003. Clearly Roger
could not have confused Pettitte in 1999 or 2000 by
speaking of Debbie’s use of HGH when that was still years into the future. After this 2005 conversation with Roger,
Andy spoke with McNamee and told him that if he (Pettitte)
were asked about his HGH use, he was going to come clean, and he also told
him what Clemens had told him, that he had misunderstood their conversation
years ago and that Roger had been talking about his wife. Pettitte
got the impression from McNamee that he didn’t buy Clemens’ story and knew
otherwise. Again, Andy was asked if he told anyone else about this at that
time, and he again thought he may have told his wife. Again, she remembered
that conversation with her husband and has stated so to the Committee under
penalty of perjury. In regard to steroids, Pettitte said that Roger had never told him he was using
steroids, but he remembered one conversation when McNamee told him he “… had
gotten steroids for Roger.” Pettitte placed the
conversation in 2003 or 2004, and said it was a private conversation at Pettitte’s private gym. There was no context to the
conversation that made Andy doubt what McNamee told him. Q Did you have any reason to think he wasn't being straight with
you about that? Pettitte: No. … I had no reason to think that. No. When McNamee was deposed 3 days later,
the investigators rather adroitly drew out his memory of this conversation,
without telling him what Pettitte has said. That
was not easy to do as McNamee was proud of his ability to keep these things
confidential, and he was not comfortable relating this case where he broke
his own general rule. Q Was it generally understood between you and Andy
that Roger was using anabolic steroids? McNamee: 100 percent understood, yeah.
And it was generalizations. Q Why do you have that belief? McNamee: Right. But Andy asked -- he
did specifically – I had an issue with Andy on -- he knew more about Roger
but would talk generally about it and I wouldn't really elaborate on -- I had
a conversation with Andy in 2004 when he -- when I was working for him
specifically. And it was Andy talking about Roger and the stuff that he
takes. Build up to that conversation, I don't know if I had led on to him to
confirm that. Q What was Andy talking about? McNamee: I'm going to get to that specifically
because I – I got involved in it with this -- I said to him, it was obvious
that … he knew that Roger was taking steroids and growth hormones. I said to
him, listen, I don't want you to think that -- I don't want it to devalue my
product and think now that I'm training you, but don't think that it is not
my work that I do that is the steroids that he took. That was my point. …
Because if he knows this stuff, I don't want him to think that the only
reason Roger was so good while I had him was because
he was getting injected. And it wasn't a service that I offered. … And Andy -- during that course of that conversation, he did ask
how many times did you inject him or did you inject him, like because I
injected him and I said a couple of times. That's all I said to him. If Roger Clemens is ever indicted for
perjury, Pettitte’s deposition and the consistency
of the corroboration, as well as the timing of the corroboration diminishing
the chance of a faulty memory, will be a key part of
the case. Pettitte’s deposition also
sheds some minor light in a couple other areas as well. From day one Clemens’
camp has been pointing out to reporters that McNamee never told anyone that
Roger was using PEDs until the Federal investigators put the screws to him.
McNamee denied that, saying he had told one of Clemens’ agents, Jim Murray,
in 2003 or 2004. Another note of interest relates to
Clemens’ backtracking off his 60
Minutes interview and saying his agent Randy Hendricks never told him
about the two requests from Senator Mitchell. It doesn’t prove Roger is
lying, but I note in Pettitte’s deposition that he does
remember Randy Hendricks telling him about Mitchell’s request for his (Pettitte’s) appearance.
McNamee’s deposition with the Committee
brings out the possibility of further use of PEDs by Roger Clemens after
2001. McNamee’s direct knowledge of this ends after 2001, which is when McNamee
is beginning to refuse to be involved with the use of PEDs by his clients and
to bring the focus back on his workout program. In McNamee’s deposed testimony for the
committee we have these glimpses that Roger may have been using PEDs after
2001: (A) Roger provided the HGH that Debbie used in 2003; (B) that at that
time McNamee saw several bottles of HGH in a male style shaving kit in
Roger’s bedroom; (C) that also in 2003 Roger advised McNamee that he wanted
to “change up their workout, body build and put on some more weight,” and
asked McNamee “Can you still get some stuff from that cat?” and (D) that in
Roger’s 2004 comeback when he wanted to train with McNamee that Roger brought
up the use of the steroids again. (Little is said about the latter in the
deposition which was stopped at that point for “discussion off the record.”) None of that means spit, but if Clemens’
were charged with perjury, those are further leads for investigation.
An interesting story running through the
background of the depositions is all the fuss about whether Clemens was at
Jose Canseco’s BBQ luncheon in 1998. In the Clemens’ deposition his crew
latches on to this like drowning men. As a point of fact it is about as
unimportant as can be. The Mitchell Report mentions it because Canseco told
Mitchell’s investigators about the detailed conversations he had with Clemens
about the use of steroids, and McNamee’s memory of the two talking at this
lunch party is simply an example of the two in conversation before McNamee
has Clemens first taking steroids. In his deposition Clemens’ camp tries to
make this a key part of the story so if they can break this part of McNamee’s
account they can claim Roger is vindicated. I actually laughed when Clemens
has this mild part of the Mitchell Report read to him, and then Roger says he
finds that “… very offensive because Brian McNamee has me being a drug
dealer.” This is the relevant part of the Mitchell
Report and what was read to Clemens at that point in his deposition: McNamee attended a lunch
party that Canseco hosted at his home in That’s also the complete reference in the
Mitchell Report to this lunch party. It’s a joke to say there is anything of
real relevance here. There is no claim of drug dealing by Clemens or anyone else.
The account has no drugs in it, not even a discussion of drugs. The meat of
that passage comes from Canseco. McNamee’s contribution is barely more
relevant than this exchange in Pettitte’s
deposition: Q Do you have any awareness of Clemens' friendship with Canseco? Pettite: Yes. Q Are they good friends, do you know? Pettite: I'd have to say it seems like they are. Yet Clemens’ crew works like crazy to
make this as significant as possible, a smoking gun. Why? Because they think
they can prove it was impossible for McNamee to have seen Clemens there. They get a notarized affidavit from Jose
Canseco in which he essentially denies everything McNamee ever said involving
him in the Mitchell Report, and he even backs off what he himself told
Mitchell’s Committee about his detailed conversations with Clemens about
steroids. In regard to the luncheon Canseco says, “I specifically recall that
Clemens did not come to the bar-b-que … I later
learned that he had a golfing commitment that day and could not attend the
party.” They also put together evidence that no
one saw Clemens on the team bus that took players from the team hotel to the
party. They get several people who attended the party to say they do not
remember Clemens being there. They produce a receipt from a golf course
showing Clemens using his credit card at When McNamee is later deposed, he is
given a chance to back off his memory of seeing Clemens at this luncheon, but
he surprises the investigators with the vividness of his memory, including
that he also saw Mrs. Clemens, some of the Clemens kids and their Nanny. They
ask him, “Are you certain about that [seeing Roger at the luncheon party]?” McNamee: Roger showed up after golf, I believe. Maybe he
was golfing. I don’t know if he was golfing. He might have showed up a little
bit later, but no, he was there the whole time for the most part. And as it turns out it was quite possible
for Roger to have both played golf in the morning and shown up late for the
luncheon party which may have lasted until And with McNamee standing by that memory,
that is what set off the last minute search for the Nanny, who the Committee
was finally able to depose over the phone the day before the hearings. Yes,
she was there that day although she did not remember it as a party. (Actually
McNamee also described it as not much of a party because they had a game that
night and it was just a luncheon spread by the pool with about 30 people
going in and out.) She also placed Mrs. Clemens and the children there as
well, and she says they had spent the previous night there. She mentions
Roger was there when Mr. Canseco gave them a tour of the house the day
before. She could not say whether Roger also spent the night as she and the
kids went to bed early. She also did not know if Clemens was there the day of
the luncheon or not. (Remember, she has also said that Roger told her he was
not there.) Now think about this. You have a tour of
Canseco’s home. Your wife and kids are staying overnight there, probably you,
too. Wouldn’t you at least have some memory of being there? Yet in his
deposition Roger is so intent on distancing himself from being at Canseco’s
house that day, that he not only denies that McNamee could have seen him
there, he says he doesn’t believe he was at Canseco’s house on any date
whatsoever in 1998! Later, after Roger and his investigator
have talked with the Nanny and knowing that the Committee is going to talk to
her as well, Roger radically changes the tone of his testimony on this from
what he said in the deposition. When deposed he is outraged because he wasn’t
there and he has proof he wasn’t there! In the Hearing he backs off
considerably, and admits with considerable flustering that it is possible
that McNamee could have seen him at Canseco’s house that day. I know that I golfed at that
house, and – I golfed and then we had a golf game, and – I’m – um – I’m not,
uh, totally positive that I wouldn’t have taken back my wife and dropped her
off at the house. I believe that the nanny was there with my kids. They sure
could have been … There you go, those are the things in the behind-the-scenes
depositions at the Clemens Hearing that I found interesting. As far as
Roger’s account holding up, then like Republican Representative Mark Souder,
and myself, you might find some of these things are, indeed, “fairly
devastating.” |
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The Diamond Appraised baseball column is dedicated to
Eddie Robinson |
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