Tuesday, January 8, 2008

Brian Asks Roger "What Do You Want Me To Do?"

The issue of Roger Clemens' alleged steroid and HGH use has taken a new -- and somewhat bizarre -- twist.  Since the broadcast of his interview on Sixty Minutes to deny any usage of performance-enhancing substances, Clemens has filed a defamation suit against his former trainer and chief accuser, Brian McNamee, then held a press conference to play a seventeen-minute tape of a telephone conversation between the two, recorded a few days earlier in response to an e-mail from McNamee to Clemens about serious medical issues McNamee's son faces.  In the press conference, Clemens asserted that he will testify before Congress, thus placing himself under oath to deny using steroids and HGH at the same time that McNamee is scheduled to appear and will likely reiterate his statements about Clemens. 

While the tape (available here) is intriguing, ultimately I think it is inconclusive because both sides sounded as if they knew this was all a set-up, and indeed I suspect McNamee might have taped the call himself.  Texas allows recording of a telephone call so long as one party consents (Texas Penal Code Sec. 16.02(c)(4)(A)), as does New York, so there is no problem in taping the conversation.  In conducting an undercover conversation that will be recorded, it is important that anything incriminating comes from the target and not the cooperator, so the conversation cannot be too explicit nor can the questioning be leading.  In that regard, McNamee said to Clemens a number of times, "What do you want me to do?", as if he was inviting Clemens to tell him to lie or at least change his statements, which could establish an obstruction of justice.  Clemens asserted in the call that he never used steroids and just wanted the truth to come out, as if he wanted McNamee to agree that there had never been any steroid or HGH use.  Neither side took the bait, and while Clemens' position remains the same McNamee hardly said anything that contradicts his earlier disclosures about steroids and HGH use. 

Enticing someone into making incriminating statements is difficult enough in most cases, and this situation shows that it is almost impossible to conduct a successful undercover operation after the investigation has been revealed.  I have no doubt that McNamee's attorney warned him about saying anything that might contradict his earlier statements to prosecutors and Senator Mitchell, so his repeated question "What do you want me to do?" was a way to deflect the conversation away from himself. 

This issue appears to be dissolving into a "he said, he said" situation because there is no documentary evidence to support McNamee's assertions, and I doubt there were any witnesses to the alleged injections of steroids and HGH.  Clemens admitted that McNamee gave him B-12 injections, so the picture is even more clouded and could give Clemens an out by asserting that McNamee lied to him about what was being injected -- the Barry Bonds flaxseed defense.  The dueling testimony before Congress will hardly be conclusive, and the defamation suit may well end without any real conclusion if it's a matter of who is more believable. (ph)


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As an attorney, I agree with your analysis, with one clarification: the Barry Bonds defense is not that Anderson lied about what he was being treated with. The Barry Bonds defense is that it was flaxseed. (Unlike McNamee vis-a-vis Clemens, Anderson isn't accusing Bonds of using steroids.)

Of course, if prosecutors can demonstrate that it was steroids rather than flaxseed, Bonds' fallback defense would then be that he believed it was flaxseed, but that isn't his defense now.

Posted by: David Nieporent | Jan 8, 2008 10:47:50 AM

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