Does Roger Clemens’ personal and/or sexual relationships have any bearing on his alleged use of performance enhancing drugs (or vice versa)? Already, the blogosphere is suggesting that steroids may have caused Clemens’ infidelity. But as far as the legal proceedings are concerned, Yahoo Sports’ Tim Brown doesn’t think his philandering has relevance to his alleged steroid use (“We’re no closer to the truth about Clemens,” April 29)

Clemens had an affair with a country singer, according to the New York Daily News. Therefore, the thinking goes, the defamation case against his accuser and former trainer is weak. Didn’t we already have a pretty good notion of that? As for claims in the petition regarding marital purity, well, it doesn’t address that, exactly. It does claim that McNamee has sullied “Clemens’ good reputation,” and has caused him to suffer “mental anguish, shame, public humiliation and embarrassment.” Presumably, the Daily News report has piled onto that, but what does a private relationship have to do with Clemens’ public reputation, whatever it may be? I’m sure the lawyers will enlighten us.

Now the attorneys chime in…

Richard Emery, McNamee’s attorney, believes the news of an extramarital affair by Roger Clemens clearly hurts Clemens’ defamation lawsuit claiming McNamee lied about Clemens use of anabolic steroids and human growth hormone (“Roger Clemens had 10-year fling with country star Mindy McCready,” April 28).

“The issue in Roger’s suit against McNamee is Roger’s reputation and how it has been damaged,” said Richard Emery, one of McNamee’s lawyers who is handling the defamation suit. “If it’s proved that he’s a philanderer, his reputation is already damaged. When you sue for defamation, you put your whole reputation in the community at issue. Anything is fair game, including his claim of sanctimonious purity. We would cross-examine him and other witnesses who might impact on his alleged behavior. We would probably subpoena her and witnesses who knew [of the relationship]. He’s a ‘family man’ – he implies that. It’s about what his damages are. All is fair game.”

Richard Emery believes the lawsuit will be dismissed.

“If the case heads to trial and is not dismissed, as we feel it should be, we will be calling [McCready] as a witness,” Emery said.

“The point is whether he was damaged by the allegations that he used steroids – he claims he was hurt. But if there are other women – and there’s not just one case, but many – and he holds himself out as a family man and an American paradigm, it’s relevant.

“None of this would have been revealed but for his lawsuit and sanctimonious testimony before Congress.”

But Rusty Hardin, Clemens’ attorney, tells the press that Roger Clemens’ (alleged) infidelity is irrelevant to the veracity of Brian McNamee’s statements regarding Clemens’ steroid and growth hormone use.

“I think it’s totally irrelevant to the issue of whether Brian McNamee is telling the truth about Roger using human growth hormone and steroids,” said Hardin. “The character trait that you put in issue should be the character trait that the defamatory statement was made about.”

I guess the specter of anabolic steroid use is so bad that Clemens would rather publicly embarrass his wife Debbie Clemens with revelations of an extramarital affair and her illegal use of human growth hormone a Sports Illustrated swimsuit photo shoot than admit steroid use. At least, Roger Clemens will have officially gone on record as officially denying steroid use.

Perjury cases are rarely prosecuted by the Justice Department according to Jenkins:

It charged just 99 people with the crime in 2006, out of more than 88,000 federal defendants. Between 2001 and 2006, 566 perjury cases were filed — about 1 percent of all criminal charges. Cases brought before the federal criminal justice system are supposed to be top-notch in quality, and of overriding size and importance.

Unless, of course, the defendant is famous.

Prosecuting trivial lies by the likes of Roger Clemens, Barry Bonds, and Marion Jones in federal court is highly unusual. This is especially true when serious lies have been told to Congress with no perjury charges:

The fact is, any number of public figures, starting with Big Tobacco executives, have told much bigger lies to Congress than Clemens did, and none faced perjury charges. You want a brazen, damaging public lie? How about, “Tobacco isn’t addictive”?

Professional athletes are treated differently than non-famous steroid users too. Usually, the government targets steroid distributors and not steroid users. But things change when the steroid user is a professional athlete.

Normally the government doesn’t go after the drug users; it wants the sellers and distributors. But in this situation it’s the inverse. It flies in the face of any sensible anti-drug effort. Something is fundamentally wrong. Everything is backward. What are we doing?

There are several explanations why steroid-using pro athletes are treated differently than everyone else.

Jenkins writes that it is a lame attempt by the government to make an example out of sports heroes who set a bad example for the children. But how can letting the sellers and distributors of performance-enhancing drugs go free send the right message to the children? 

Law professor Frank Bowman justifies this approach from a prosecutorial perspective:

The hierarchy of the performance-enhancing drug market for professional athletes is exactly the reverse. The balance of power, money, and culpability lies with the players in their relationships with guys like Roger Clemens’ trainer Brian McNamee or former Mets clubhouse attendant Kirk Radomski… If relative culpability is to determine who is prosecuted and who is allowed to go free, it’s the players who should be indicted.

But I think Lou Schuler offers the best explanation as to why professional athletes are treated differently in steroid cases in his critique today of the cult of celebrity.

Fame, in Western civilization, has a narrative structure. You’re born to be a god or hero, you perform spectacular feats of strength or bravery or intellect, and then when you get to the top, you screw up. The gods get to remain gods despite their blunders — the monotony of their immortality has a lot to do with their need to beat the hornet’s nest from time to time — but the mortals or semi-mortals who achieve fame pay a terrible price. The demons that drive them to greatness inevitably get the better of them… 

The trinity of celebrityhood that I mentioned — athletes, entertainers, politicians — provide ready-made fodder for the narrative. The talent, magnetism, energy, and narcissism that drive people into the spotlight are the same qualities that make them likely to screw up at some point. It’s just a matter of time.

We love our sports heroes. But we love to see them fall from grace even more!

Hardin allows Clemens to wait several days before responding to allegations of steroid and growth hormone use in the Mitchell Report. Hardin prepped Clemens for his terrible performance on 60 Minutes where he: (1) admitted the hypocritical use of various other performance-enhancing drugs that enabled him to continue playing while masking pain of his injuries; (2) offered idiotic explanations as proof that he never used steroids; and (3) admitted to allowing a non-medical professional inject him with B-12 and lidocaine. Hardin compared Clemens’ drug use to a high performance racehorse (apparently oblivious to the problem of steroids in horse racing).  Hardin apparently preps Clemens to secretly record a phone conversation with Brian McNamee and hold a press conference to share it with the media even though it proved nothing. Hardin stands by as Clemens releases statistical report that supposedly proves he didn’t use steroids but fails to accomplish its goal. And lastly, Representative Henry Waxman apologizes for holding the disastrous Roger Clemens steroid hearings, explaining that the only reason he did it was because Clemens’ attorneys insisted upon it.

Although the stupidity of it all seems self-apparent, it is nice to hear legal professionals weigh in on the matter. Thanks to Steroid Nation for finding this article with criticism of Rusty Hardin and Roger Clemens by Minnesota attorney former talk-radio host Ron Rosenbaum:

No one can really explain the strategy followed here… It strikes me as insane.

Clemens’ ego is so huge that nobody could tell him what was right or he’s getting bad legal advice.

There’s a difference of opinion in this town, but from the very beginning I thought this was a textbook case of how to not handle a legal situation like this…

He’s just a buffoon, and there’s nothing juicier than a buffoon in the legal system… They’ll treat him like a piñata.

Rosenbaum is critical of how the legal case has been handled although he doesn’t directly place the blame of Hardin or Clemens legal team by leaving open the possibility that Clemens is ignoring his legal counsel’s advice. But I doubt it.

An attorney friend of mine has told me that not only has Clemens committed perjury but his lawyers are likely complicit. I liked Roger Clemens a whole lot better when he was just an elite baseball player who I assumed used anabolic steroids and growth hormone. I have lost respect for him after the stupidity he has displayed over the past couple of months.

Mike Fish of ESPN noted:

Committee members from the Republican side of the aisle at times fawned over the seven-time Cy Young Award winner and tore into the credibility of Brian McNamee, who claims to have injected Clemens with anabolic steroids and human growth hormone, calling Clemens’ former trainer everything from a lying ex-cop to a drug dealer with a phony doctorate.

Conversely, the Democrat members of the committee — led by chairman Henry Waxman of California and Elijah Cummings of Maryland — went after Clemens, trying to trap him in lies and raising the specter by hearing’s end of the possibility that he had perjured himself before Congress.

Christine Daniels of the Los Angeles Times tried to make sense of this partisanship since Democrats and Republicans behaved as if “their party affiliation was a logo emblazoned across a cap and jersey” on McNamee and Clemens.”

Clemens is rich, arrogant and throws right. Of course the Republicans have his back.

McNamee is a working stiff. He drew a paycheck from Clemens. He doesn’t have anything close to Clemens’ fame or clout. He’s an underdog. Of course that’s a cause the Democrats will support.

Rooting for the New York Yankees has been likened to rooting for U.S. Steel or owning a yacht. Clemens has pitched for U.S. Steel. Twice. He won two World Series with the Yankees, in 1999 and 2000. He returned for a second, less pleasant stint in 2007. In between spins on the yacht, he led the Houston Astros to the World Series in 2005, for the first and only time.

Houston is GOP territory. Houston has an airport named after George Herbert Walker Bush, the 41st president and a longtime friend of Clemens. In 1991, while still pitching for the Boston Red Sox, Clemens visited Bush’s home in Kennebunkport, Maine, and pitched horseshoes with the president. They were paired on the same side, to borrow a phrase, two against two. No surprise there: They won.

Clemens testified that after his name was mentioned in the Mitchell Report, Bush phoned him while Clemens was hunting to offer support.

George Mitchell: a prominent figure within the Democratic Party.

Hunting: a popular leisure-time activity among Republicans.

And of course, Richard Emery, attorney for Brian McNamee offered this explanation:

Still, for the moment, it was Wednesday’s partisan rumblings that continued to echo. Richard Emery, who is one of McNamee’s lawyers, even predicted Thursday — somewhat sarcastically — that Clemens would be pardoned by President Bush before the possibility of a perjury charge even emerges, which is legally possible.

Clemens, like President Bush and his father, George H.W. Bush, in Texas. In his testimony Wednesday, Clemens told the committee that the former president Bush had reached out to him after the Mitchell report was released and told him “to stay strong and hold your head up high.”

“It would be the easiest thing for George W. Bush,” to do, Emery said, “to say Roger Clemens is an American hero, Roger Clemens helped children.”

But my favorite explanation was attributed to Comedy Central’s Stephen Colbert - quite simply Republicans support steroid users and Democrats support steroid dealers!

The customary practice for federal prosecutors is to prosecute dealers rather than users. In a reversal of this practice, Radomski was given leniency in exchange for his testimony against his clients (individual steroid users who happened to be professional athletes).

Frank Bowman, a former prosecutor and current law professor at the University of Missouri-Columbia, justifies this approach:

Federal prosecutors customarily prosecute dealers rather than users primarily because dealers are considered more culpable. Dealers are the rich, bad-guy beneficiaries of others’ weaknesses, while users are destitute victims or inconsequential saps. Dealers affect many people. Users affect only themselves.

The hierarchy of the performance-enhancing drug market for professional athletes is exactly the reverse. The balance of power, money, and culpability lies with the players in their relationships with guys like Roger Clemens’ trainer Brian McNamee or former Mets clubhouse attendant Kirk Radomski. McNamee’s and Radomski’s continued employment in and around the major leagues depended on the favor of players, particularly stars. The nobody suppliers made a few thousand in pin money for supplying the juice. But the real financial gainers were the players: Drugs allowed them to cheat their way into the majors or to enhance and prolong careers worth millions of dollars. If relative culpability is to determine who is prosecuted and who is allowed to go free, it’s the players who should be indicted.

The other reason federal prosecutors ordinarily go after dealers, not users, is to have a greater effect on drug markets. But if one really wanted to stop the use of steroids in baseball, which is likely to be more effective—cooperation deals with a few locker room enablers, or the spectacle of big leaguers in prison stripes rather than pinstripes?

The end result is the same for the government snitch as the Drug Law Blog points out:

[T]he person who flips on their colleagues and friends is richly rewarded in our criminal justice system.

Now, Kirk Radomski is free to exploit his steroid infamy and sign the million dollar book that he bragged would overshadow Jose Canseco’s Juiced.

In other news, a teenager is facing 20 years in prison for selling steroids.

It is simply bizarre that McNamee would have saved such items for seven years; I am sure there will be considerable speculation as to his motives. But the evidence could increase McNamee’s credibility if the physical evidence is consistent with his allegations of steroid use and growth hormone by Clemens. Steroid Nation explains how the physical evidence would support the allegations:

DNA matching could prove the Clemens connection.  When an injection is performed a small amount the the recipient’s blood is back-washed into the syringe.  That would allow DNA testing to verify Rocket-DNA; forensic analysis could also identify anabolic steroids.

While the physical evidence could corroborate McNamee’s statements, legal experts debate whether the evidence is admissible in court and the likelihood that such evidence would successfully be discredited by defense attorneys.

I also found it somewhat bizarre as well that the New York Times tried to suggest a similarity between the bloody syringe and Roger Clemens with the controversial retroactive testing of Lance Armstrong’s urine sample a few years ago:

The newest development in the Clemens case is similar to an issue that cyclist Lance Armstrong, long under suspicion of using performance-enhancing drugs, confronted in 2006. In that instance, the International Cycling Union discounted a reported link between Armstrong and the banned substance EPO because they concluded that testers had not followed proper procedures in retroactively testing Armstrong’s 1999 urine samples five years later.

Odd story.

Frank Bowman, a former prosecutor and current law professor at the University of Missouri-Columbia, posted some interesting thoughts on the matter on Slate. The Justice Department’s behavior is problematic when it comes to “grand jury secrecy laws” and its policy on “uncharged third parties”:

A mere allegation of criminal wrongdoing coming from government sources can wreck a life or a career. If formal charges are filed, the defendant will at least have his day in court to admit or attempt to disprove the government’s case. But if the allegation comes in a report issued by the private sector, but engineered by the government, the reputational damage is done, and the defendant has no forum in which to contest it.

For precisely this reason, by law, federal grand jury proceedings are secret to protect the reputations of those who are investigated but never prosecuted. Historically, Department of Justice policy has been even more sensitive to these interests. In public filings and proceedings, the DoJ’s Principles of Federal Prosecution require prosecutors to “remain sensitive to the privacy and reputation interests of uncharged third-parties,” which “means that, in the absence of some significant justification, it is not appropriate to identify … or cause a defendant to identify, a third-party wrongdoer unless that party has been officially charged with the misconduct at issue.” (The italics are mine.)

Technically, the deals requiring McNamee and Radomski to cooperate with Mitchell probably don’t violate grand jury secrecy laws, because those laws bind prosecutors, agents, and grand jurors, but not witnesses like McNamee and Radomski. And technically, those deals might not have violated DoJ policy on uncharged third parties, inasmuch as Clemens and other players weren’t actually named in official filings or in a federal courtroom. But using plea bargaining leverage to require witnesses to divulge to Mitchell the names of people the Justice Department never intended to prosecute surely violated the purposes of both grand jury secrecy law and DoJ policy.

The requirement for Radomski and McNamee to cooperate with Mitchell was clearly outlined in their plea agreements: 

I will cooperate with non-governmental anti-doping agencies at the direction of the government. I understand that this cooperation may include interviews, statements, or other proceedings.

Frank Bowman goes on to suggest that this potential abuse of government powers is serious enough for Congress to call a formal investigation.

Now, if you think that Professor Bowman is somehow sympathetic to Major League Baseball players who have used anabolic steroids or growth hormone, think again. Bowman believes the “hierarchy of the performance-enhancing drug market for professional athletes” is such that federal prosecutors should primarily target the “athletes” and not the “dealers” which is contrary to the customary prosecutorial practice of pursuing dealers instead of users.

Even if you agree with government involvement in anti-doping efforts of private sporting leagues, there should always be limitations on government behavior to prevent abuses of power.

Source: Slate

But ESPN found an “anti-doping expert” who claims that anabolic steroid injections represent a special type of intramuscular injection that is more likely to cause abscesses. According to Gary Wadler of the World Anti-Doping Agency (WADA).

It is far less likely that any injection of vitamin B12 or lidocaine, which is usually not injected deep into the body, would have created an abscess… Steroid users tend to repetitively inject the drug deep into the muscle and this has been associated with the development of sterile abscess.

Seriously, there needs to be some sorta minimal standard by which individuals can be called doping experts. It is an unfounded and unsupported claim that an (unspecified) anabolic steroid injected intramuscularly is more or less likely to cause an abscess than an intramuscular B12 injection especially when injected repeatedly over time.

B12 injections are delivered via either intramuscular or subcutaneous injections. B12 is only injected subcutaneously when there is no acute deficiency and a more gradual release from the body’s fat stores is required. Most individuals, especially athletes, desire an immediate effect.

If Gary Wadler is stating that intramuscular injections are more likely to cause an abscess than a subcutaneous injection, he is correct. But his statements were carefully delivered to suggest steroid injections and not B12 injections cause abscesses.

Roger Clemens’ defamation lawsuit against former trainer Brian McNamee vaguely hints at impropriety by federal investigators, including Jeff Novitsky, during their interrogation of McNamee. There is a long trail of alleged investigative misconduct that has followed Jeff Novitsky since the beginning of the BALCO scandal.

Victor Conte has publicly shared his version of events that occurred at the BALCO raid. Conte and former vice president of BALCO, James Valente, both filed declarations in federal court containing regarding Novitsky’s behavior and tactics on the day of the raid. The allegations include “illegally coercing statements, improperly serving search warrants and using excessive force during the raid.”

Michael Rains, an attorney for Barry Bonds, claimed that Jeff Novitsky committed criminal misconduct.

Pitcher Jason Grimsley stopped short of making claims of coercion against Novitsky but changed his mind after federal investigators “wanted him to wear a wire to get evidence against Barry Bonds.”

And now, Clemens defamation lawsuit seems to suggest that the aggressive interrogation tactics and threats used by Notivsky et al may have manipulated the truth in McNamee’s allegations of Clemens’ steroid use and growth hormone use.

In spite of the lack of integrity, questionable ethics, and suspect motives that have been alleged against Jeff Novitsky, his interrogation tactics may still be perfectly legal.

However, it should be noted that baseball players aren’t the only “dirty players” in the doping game. The biggest cheaters in the entire major league baseball doping scandal may not be the ones with the balls and bats.

Hardin told the press recently that Clemens received multiple injections throughout his career. He even compared the use of, shall we say performance-enhancing injections, to those of a high-performance racehorse. Great analogy (sarcasm) – compare a suspected doper to another sport that has historically been plagued by doping.

In my post on MESO-Rx, I agreed with the attorney for Brian McNamee who suggested that revelations were part of a legal strategy to suggest that Clemens received so many injections, that neither he nor McNamee could be certain what was actually injected. Maybe a successful legal strategy, but sure to be a disaster for public relations and media consumption.

After all, Roger Clemens simply described the total hypocrisy of drug use in major league baseball:

Clemens’ admission to injecting several performance-enhancing substances that were to help joints and/or mask pain pointed out the hypocrisy of selectively demonizing some performance enhancers while condoning others. Drugs that allow a baseball player to “mask pain” are arguably more dangerous than growth hormone use and even steroid use. Yet Clemens is proud to use these drugs to mask pain allowing him to continue playing and performing while injured.

Clemens admitted to regularly using Toradol, which is considerably more liver toxic than most oral anabolic steroids. Yet the dangerous liver toxicity of oral androgens is unacceptable, but the even more dangerous liver toxicity of Toradol (not to mention its use to mask pain to allow players to perform while injured) is perfectly acceptable.

Even more entertaining were the reasons Clemens gave as proof that he never used anabolic steroids or growth hormone:

1. He would have grown a “third ear out of his head”;
2. He would have been able to “pull a tractor with his teeth”;
3. His tendons would have “turned to dust”;
4. His body would have experienced a “breakdown”; and
5. He would have lost “flexibility”

Since none of these things happened, that must be proof positive that he never used steroids or growth hormone!!

I like Roger Clemens (after all, he is a Longhorn)! He is an amazing athlete. But his attorney should be fired.

http://www.cbsnews.com/sections/i_video/main500251.shtml?id=3676196n