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Right; but -- and I was only able to hear bits and pieces of the tape -- what was the tape supposed to show? What was the purpose Hardin played it?
Have his critics been correct in predicting his next step, at any point along the way?
Stated purpose: so the media's many, many questions about everything are answered (he's trying very hard to portray the Clemens camp as being transparent as possible).
Strategic purpose: to imply that McNamee is a liar. It isn't clear cut obviously, but the multiple "tell me what you want me to dos" and his failure to once say "I AM telling the truth" when Clemens says that's all he wants certainly moves things more in that direction.
Clemens sounded like he was given a short leash by his lawyers on that call. McNamee sounds like he's guilty about something.
"if you just tell the truth, that I didn't do steroids" sounds to a lawyer a lot like trying to influence a witness's testimony, trying to put words in his mouth.
That's exactly what Clemens was trying to do -- trying to get McNamee to voluntarily recant without prompting -- because if he "Actually comes out and says so," he risks those witness tampering charges.
All Clemens needs is a single instance of McNamee saying to him, "Yes, I know it isn't true, but I had to say it" and he's home free.
It sounded to me, from what I heard, that both of them either knew the call was being taped or suspected it was. That's why there was no smoking gun, and why, e.g., Clemens was being extra careful about witness tampering.
I am just unclear on where this tape came from.
No, he said he would fire them if it would make it all go away and better and everything (my gloss, but that seemed like the gist of it).
The ESPN guys TimK and SteveP are saying that Clemens should have said "tell them I didn't do steroids."
If TimK and SteveP were Clemens' lawyers, Clemens would be facing indictment soon, I presume.
I wouldn't consider that dispositive and McNamee's side may have taped it, too, but the Times certainly implies that the Clemens team taped it.
He explained the legalities of taping the conversation, and pointed out that Texas and New York are one party consent states, and that Clemens was the party who consented.It's not unethical from a legal ethics (*) point of view, although lying about whether it's being taped might be. And it's perfectly legal. If someone stands by what he said, then it's not a problem; if someone is going to lie about what he said, then it's his problem.
(*) Yeah, yeah, insert joke here.
McNamee mentioned he was out of money a couple of times but he didn't outright ask for money. He probably asked Roger twenty times "what do you want me to do?". When he first asked Roger that I said to my wife that Roger should ask him why did you lie about me taking steroids, or will you please come out and tell the truth that I never used steroids? Roger never did that, most of his responses to McNamee were about the stress his family was under and how his wife was taking it badly.
I think Clemens was clear enough on a couple of occasions in the call to be saying "I didn't do it and you lied about it." McNamee never took the opportunity to say "hey man, I had to tell the truth. Sorry."
And please know: this is not an instance of confirmation bias on my part. Before the press conference I was of the opinion that Clemens was the liar here. I can't say I've heard enough to totally change my mind, but I certainly have moved off that opinion into "man, this is kind of crazy" territory, which is something.
It would have greatly benefited Clemens if McNamee had said something like "They made me say it." It would have greatly benefited McNamee if Clemens had answered one of his incessant "Tell me what to do" offers. Neither man was talking openly, so neither one was satisfied.
or
"my client is a guy who genuinely feels bad about dicking over his friend by ratting him out."
Perhaps McNamee wasn't oing out to get Roger in trouble just didn't see any other way or choice to proceed and feels genuinely bad about it.
Of course he was accused of rape at one point in his life so that makes him evil and just out to sell everyone out.
Yeah. It looks like Hardin even handed him a note while Clemens was taking questions, to ask him to settle down. Clemens read the note aloud and said that it was tough to stay calm with all of this going on.
Well, one thing is for certain: Clemens's actions stand in stark contrast to those of the other high-profile players accused of taking steroids (Bonds, McGwire, even Palmeiro -- after Palmeiro failed the drug test). If McGwire is supposed to be guilty because he wouldn't answer questions, and went quietly into the night thereafter, I don't know how the people concluding on that basis that McGwire lied don't give weight to Clemens's actions here.
If Clemens is guilty, he's sure risking a lot with this shoot-for-the-moon strategy.
Indeed. The only thing he hasn't done so far is deny it under oath -- but if he fails to do so now, after so much bluster, he's dug his own grave. So yes, he's really going double or nothing.
I'd be shocked if he doesn't testify in front of Congress, after all of this -- and yes, he would have dug his own grave at that point.
The only restriction I can see him putting on his Congressional testimony is that he will stop short of naming or even talking about other players. I think he alluded to that in the press conference today, when he said he would only speak about himself. (He also said he didn't know much, anyway.)
I certainly am giving Clemens a lot of weight for how he's reacted so far. I still believe McNamee because I can't figure out why he'd be lying, but I will say that Clemens is getting my attention in a way that McGwire never did. I'm certainly going to be interested in hearing both his and McNamee's testimony, and how it seems to stand up, and if it turns out that McNamee was fabricating a tale for whatever reason, Clemens's stature will be higher than ever. He'd be like Richard Jewell, plus a Hall of Fame level career. And I sure hope that's the ending to the story.
If Clemens is guilty, he's sure risking a lot with this shoot-for-the-moon strategy.
In that case I wouldn't care if he goes into the tank. But in that case he's still only going to be marginally worse off than he was 24 hours ago.
Haven't we gone over this, Andy? As I said earlier in this thread, Hardin gave one plausible reason today, which centered on the pressure McNamee was under. Hardin:
"If the prosecutor says, 'The truth is X, now what is the truth?,' it doesn't take a rocket scientist to figure out what the truth is."
That's one -- plausible -- reason why he might be lying. Are you denying it's plausible?
Most unintentionally funny post in the history of Primer. Bernal Diaz has about 1 kagillion BTF Lounge posts to his credit.
I must admit, I'm impressed as hell with Roger's response.
I think this all the time when I'm watching American lawyers in action in celebrity cases. Why do they discuss specifics with the press so much? Like this, why is his lawyer talking about it? As a spectator from up north, it seems like solicitor-client privilege is non-existent.
I had the same thought about Dr. Phil - goes to see Britney and then he's talking to the media about her and saying that she's a disaster. You would think that he'd be bound to keep his observations private if he's any sort of a medical professional. Insane.
It then proceeds to: So you agree that you are a liar?
Typical response: About those things, yes.
Come back: Are you saying that this is the only time you have ever lied?
If he says yes, he will be a sitting duck for any good investigator. If he says no, he will then be asked to go over his lies.
That is going to be one brutal deposition.
Haven't we gone over this, Andy? As I said earlier in this thread, Hardin gave one plausible reason today, which centered on the pressure McNamee was under. Hardin:
"If the prosecutor says, 'The truth is X, now what is the truth?,' it doesn't take a rocket scientist to figure out what the truth is."
That's one -- plausible -- reason why he might be lying. Are you denying it's plausible?
First, it's amazing the way that so many people's modus operandi here seems to be to take a snippet out of a post and jump all over it, while ignoring that post's main point.
Here's that entire paragraph:
I certainly am giving Clemens a lot of weight for how he's reacted so far. I still believe McNamee because I can't figure out why he'd be lying, but I will say that Clemens is getting my attention in a way that McGwire never did. I'm certainly going to be interested in hearing both his and McNamee's testimony, and how it seems to stand up, and if it turns out that McNamee was fabricating a tale for whatever reason, Clemens's stature will be higher than ever. He'd be like Richard Jewell, plus a Hall of Fame level career. And I sure hope that's the ending to the story.
Here I spend 90% of my post on explaining why I'm giving credit to Clemens for his reaction to date, and hoping that he's vindicated, and you fixate on the fact that I'm unconvinced of the probability of McNamee's lying and lecture me for not finding it "plausible."
Well, sorry, but I'm still not convinced that Hardin's scenario amounts to much more than something you'd expect him to say. I'd say the same thing myself in his place, but at this point it's pure speculation and innuendo.
But presumably if McNamee's been fabricating his accusation out of whole cloth, Hardin will at some point be able either to back that scenario up, or put forth a more likely one.
And right now, what either of us thinks about "probability" or "plausibility" is only a working theory, subject to possible revision as further facts (or much better theories) come out. This story is far from finished.
At this point, any cross-examination of Mr. McNamee is going to begin with a litany of changed stories, includig every time he ever said Clemens or Pettitte did not use PEDS, and his statement to the investigators that he was not pressured.
It then proceeds to: So you agree that you are a liar?
Typical response: About those things, yes.
Come back: Are you saying that this is the only time you have ever lied?
If he says yes, he will be a sitting duck for any good investigator. If he says no, he will then be asked to go over his lies.
That is going to be one brutal deposition.
Shall we call in Backlasher to break the tie?
But wait! It's not just speculation. It was just speculation when we posited it a month ago after the Mitchell Report was published. But now it's not just our speculation, and it's not just Hardin's speculation. From what we can tell -- see my post 144 -- McNamee said it too. McNamee's lawyer now claims that he was lying to make Clemens feel better, but I don't see how you can claim that it's something Hardin made up.
and i keep saying - mcnamee most DEFINITELY has reason to lie - he got leaned on by the feds. andy you should watch forensic files - theres all KINDS of episodes about people who got coerced by the cops into making false statements/confessions.
and i keep saying - just because you tell the truth about one thing does not mean you tell the truth about everything.
and even with men theres things that even best buds don't tell each other and all yall males darn well know that
Hmm... this may be true within your own Bar, but not mine. In my jurisdiction, I'd be prohibited by the bar's rules of professional conduct from taping such a conversation without informing the other side of my intention to do so. I suppose that technically (and this is a baer technicality) taping a conversation between my client and another lawyer's client would not be unethical under the rules, but it's skating on very thin ice...
Yeah, Andy, but you keep pulling that: you ask us to speculate, and then when we do, you say, "But that's just speculation."
Which it is, in the sense that Hardin's giving an ad hoc and self-serving private communication equal or greater weight than testimony under oath. Not that there's anything wrong with Hardin's gambit, just as there's nothing wrong with my discounting it as such. I'm not getting hot and bothered at Ray's accepting Hardin's theory as "plausible," ("appearing to merit belief or acceptance"); yet he seems all bent out of shape because I'm not accepting it as "probable." Whereas all it amounts to is a simple difference of opinion as to when the one becomes the other.
But wait! It's not just speculation. It was just speculation when we posited it a month ago after the Mitchell Report was published. But now it's not just our speculation, and it's not just Hardin's speculation. From what we can tell -- see my post 144 -- McNamee said it too. McNamee's lawyer now claims that he was lying to make Clemens feel better, but I don't see how you can claim that it's something Hardin made up.
So McNamee feeds Clemens a tall tale in an e-mail or a telephone conversation (or whatever it was), and this is the equivalent of testimony under oath. That does remove it from the realm of Hardin's imagination, but it's still quite a long road to probability.
For God's sake, next we'll be saying that Bill Clinton's claim that "I never had sex with that woman" was "plausible" at the point he said it, simply because....well, because he said it.
I can't find an ethics ruling on it in New Jersey.
Not at all. I find it odd that you don't concede that it's plausible, not probable. Your focus on the word "probable" is a strawman, and is something I never argued.
Andy, it's not like the hypothetical is that McNamee lied about Clemens because McNamee didn't like that Clemens wears Nike shoes while McNamee prefers Reebock. The above hypothetical is a perfectly plausible scenario -- not that it's probable or likely or the leading theory as to what happened. I've said that it's quite possible McNamee is the one telling the truth. I don't know why you have trouble granting that the above hypothetical is not an unreasonable one, especially given that you've placed huge significance on brainstorms such as the question of why McNamee would tell the truth about Pettitte and yet lie about Clemens. Why is that thought experiment valid while the above one is not?
I find it telling that in this day and age of tabloid journalism, and two major newspapers on both coast dedicating entire staffs to the subject of roids, that a story that includes steroids by baseball players, and an out of control federal agent, can't be fit to print other than by Playboy.
The American press corp isn't interested in the facts in this case. They have been wrong in their speculation at every turn through this whole ordeal. wrong ...
They are just interested in "Names", the bigger the better, that they can splash on the front page ...
and all you witch hunters, like the sheep we humans are ... feed off of it .. its sick.
Free Roger Clemens
Free Barry Bonds.
for Gods sakes, free Sammy Sosa!!
and would 'Bud Lite' please, please step down!
this is nuts.
It's called a statement against interest. Admitting you committed a crime has what the Supreme Court calls 'indicia of reliability.' Or do you now doubt Andy Pettitte's admission he used hGH?
As often happens, David, you lose me in the legalese. But I would hope you can see the difference between McNamee's tale to Clemens in a private communication, where he was not under any sort of oath or public scrutiny, and had every motivation to lie; and Pettitte's admission, which was with the eyes of the world upon him. And though it's true that Pettitte's statement to the press was also not under oath, a false denial was very likely to lead to much closer scrutiny, and Pettitte is certainly intelligent enough to recognize that. He had far more to gain by telling the truth than he did by denying it---for one thing, he wasn't going to Cooperstown in any event.
So whatever legal similarities there may be between McNamee's communication to Clemens and Pettitte's statement to the press, the broader context in which they were given couldn't be more different.
I'm not getting hot and bothered at Ray's accepting Hardin's theory as "plausible," ("appearing to merit belief or acceptance"); yet he seems all bent out of shape because I'm not accepting it as "probable."
Not at all. I find it odd that you don't concede that it's plausible, not probable. Your focus on the word "probable" is a strawman, and is something I never argued.
Andy, it's not like the hypothetical is that McNamee lied about Clemens because McNamee didn't like that Clemens wears Nike shoes while McNamee prefers Reebock. The above hypothetical is a perfectly plausible scenario -- not that it's probable or likely or the leading theory as to what happened. I've said that it's quite possible McNamee is the one telling the truth. I don't know why you have trouble granting that the above hypothetical is not an unreasonable one, especially given that you've placed huge significance on brainstorms such as the question of why McNamee would tell the truth about Pettitte and yet lie about Clemens. Why is that thought experiment valid while the above one is not?
I guess it's simply because in spite of the fact (as I've repeated time and again) I fervently hope that McNamee is the one who's lying, I find the likelihood of that to be so much less than "probable" that it falls below my idea of what is "plausible." It's strictly a percentage call, and it's strictly a matter of judgment and opinion.
Look, here's the first definition of the word "plausible":
1. Seemingly or apparently valid, likely, or acceptable; credible: a plausible excuse.
I don't see that as being the same thing as "theoretically possible." And that's all I'm saying.
Would McNamee, as the defendant, even take the stand in Clemens' defamation suit? Based on how you describe the possibilities I'm assuming if you're his attorney you don't put him up there unless you absolutely have to.
Maybe the lawyers in the crowd can answer this one. A bunch of times in the phone conversation, Clemens says, "I want somebody to tell the truth." He says it a lot when McNamee asks, "What do you want me to do?" (Italics mine, in both cases.) If he's innocent, is there any legal reason for Clemens to say he wants "somebody" to tell the truth instead of saying he wants "you" (McNamee) to tell the truth? Would telling someone to tell the truth be considered witness tampering or something like that?
As an aside, the recording sounded to me like neither one of them wants the other one to go through what they're going through, but it's not in their self-interest to do anything to help the other one out. No matter who you believe, you have to feel for their families.
Clemens' lawyers can call him to the stand. If he doesn't want to testify, his only recourse is to plead the 5th. If he does that, game over.
That may be the truest statement posted here on this subject to date.
I believe that McNamee really feels bad about ratting on Clemens. But he doesn't want to be the next Greg Anderson.
And that one's a close second---taken whatever way you wish.
Villageidiom:This isn't a criminal case; a litigant in a civil case can be called by either side. See, for instance, OJ. You can refuse to answer based on self-incrimination (if that's the case), but unlike in a criminal trial, a civil fact finder can hold that against you; a jury is allowed to draw negative inferences from the fact that you didn't testify.
Not literally, no -- but Clemens is not legally trained, and he's in a spontaneous conversation, not a scripted performance. He risks saying something that could get him in trouble if he answered the question, so Hardin didn't want him to get anywhere close to the line, so instructed him not to tell McNamee to say <u>anything</u>.
If Clemens just says "I want you to tell the truth," he's probably fine -- but if he slips up and says, "I just want you to tell people I didn't use steroids"... whoops!
Bingo. But because I'm bored and like to think up stupid stuff, I can also picture a more elaborate fact pattern. Let's say in 2001, Clemens and McNamee had a conversation in which they agreed that, if they ever got caught, they'd tell "the truth." Except in the context of their conversation they agreed that the words "the truth" were code for Clemens saying all he got was B12 and McNamee going along with it. Flash forward to last Friday, and you have Clemens pointedly reminding McNamee to revert to their prefabricated BS story, code named: "the truth."
Yes, far fetched (and I'm certainly not saying that happened) but it's that kind of imaginative thinking that causes lawyers like me to sometimes err so ridiculously on the side of caution.
Kevin, I didn't respond to your comment ("McNamee can respond with a tape of Palmeiro pointing his finger at Congress") because I didn't realize you were serious; I actually thought you were joking.
Hmm. Not according to Attorney Mike Lupica:
Not often, but that's because I think he goes for comic value when writing his columns.
That's why I read them, anyway.
Interesting. Assuming the story is accurate there certainly seems like enough to at least press charges.
What are the various scenarios where this story is true, yet McNamee wouldn't face charges?
And I say that without an agenda here; just wondering.
This -- that police officers believed McNamee lied during the investigation -- is referenced in paragraph 20 of Clemens's complaint.
And Hardin will of course focus on that point, as he did in the story:
St. Petersburg police records: Clemens' ex-trainer lied during 2001 rape case
That's extremely misleading.
- supposedly straight men sure are interested in other mens rear ends, arent they? i mean, shots in the ass, assinjectors, poking (needles in) some guys ass, guys shooting up other guys asses...
geez
so anyhow, even if mcnamee confesses he made the whole thing up to get time off his sentence or that novitsky or the feds made him say it or something, how many media/fans/kevins are gonna say - well, i think he's guilty anyhow no matter WHAT mcnamee said
and is anyone besides me a little surprised that the media has turned on roger like he's barry lamar or something? i didn't think roger was that hated by the media outside of bahstin
It hasn't been quite like Bonds, but no, I am not surprised. The whole he said/he said thing makes great copy as well.
He'll also be able to bring in the agents who forced him to spill.
Into his deposition? During his testimony? Not hardly. The Palmeiro thing would never be part of anything.
I don't speculate as to your profession, kevin. Don't make uninformed comments regarding legal proceedings.
This ain't a criminal suit. He can be called by Clemens, and be required to testify, unless he takes the 5th. If the plaintiff's attorney can tie him in knots in a deposition, then there are a lot of attorneys who might call him as a hostile witness in their direct case.
EDIT: Oops. Change that to: I agree with Craig. Again.
Why would that be strange? I knew lots of ex-cops in New York, with plenty of good reasons for leaving, starting with "They don't pay me enough to keep doing this."
You left out ratfink.
Like I said several days ago, I would love to have seen his libel suit where he explains how Clemens had ruined his pristine reputation. I would love to have seen the cross-examination of the witnesses he called to testify to his good reputation in the community.
"Tell me sir, when you testified that he had a good reputation, were you aware of the well known allegations that drugged a young woman and then raped her in a hotel swimming pool, and then lied about it to the police?
"Tell me sir, when you refer to his good reputation in the community, are your referring to his reputation as a good supplier of illegal drugs? Was his reputation good because he always paid his suppliers on time? Because he did not use dirty needles?"
And of course, the investigation of this guy has only just begun. With the kind of money Roger has -- and what he already probably knows about him -- every bad thing he has ever done, every bad thought he has ever had, is going to be part of the public record.
I agree. Which makes me wonder why so many -- Leitch at Deadspin being the latest -- are so convinced that Clemens can never beyond this to salvage, at least for the most part, his reputation. Regardless of who you think is really telling the truth here, if McNamee implodes and Clemens wins his lawsuit (or can otherwise plausibly declare victory) many of those who casually dismissed him as a cheater upon hearing the Mitchell report will rethink the matter.
If Clemens takes it too far, though, isn't there a risk (PR-wise, I'll leave the law to the lawyers) that he'll be dirtied by association. This guy's Clemens' personal trainer and apparently a close friend. Having a close friend and your personal trainer who's a rapist and a drug dealer probably isn't the best way to polish up your own reputation, is it?
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