Federal Judge Offers Little Relief to Roger Clemons

Oct 9, 2009

A federal judge has denied former Major League Baseball pitcher Roger Clemons’ motion to reconsider his defamation lawsuit against a former trainer, who made statements about Clemons’ alleged use of steroids.
Clemons’ motion was initiated after the same judge had granted defendant Brain McNamee motion to dismiss the pitcher’s lawsuit.
In affirming his earlier ruling, the judge found that:
(1) trainer was immune from defamation liability for statements made to investigating commission, and
(2) statements allegedly made by the trainer, that the player had used steroids and human growth hormone (HGH), were not slander per se.
Clemons’ original claim accused the defendant of falsely telling Clemons’ former teammate Andy Pettitte that Clemons had used steroids and HGH. He also alleged that the defendant made untruthful statements regarding his alleged use of steroids and HGH to the Mitchell Commission and SI.com.
One of the key considerations was whether McNamee’s statements to the Mitchell Commission should be immune from the lawsuit because they were made in the course of a government investigation.
In his motion to reconsider, Clemons admitted that the defendant was speaking to the Mitchell Commission at the behest of the United States Attorney’s Office (USAO) and the Federal Bureau of Investigation (FBI). However, he did “introduce a new policy argument, based on an article by Professor Frank Bowman published in Slate.com, and an article by sports writer Josh Peter, published on Yahoo Sports.
“These articles argue that it is dangerous to allow prosecutors to coerce witnesses ‘to speak publicly about matters that are the subject of a criminal investigation.’ Bowman opines that criminal defendants will have no forum in which to defend themselves when government entities influence the content of private sector reports.”
Clemons “acknowledged that there is little this court can do to control prosecutors who use such ‘questionable tactics.’” Nevertheless, he did argue that “the court should not ‘incentivize’ such behavior.” By doing so, Clemons maintained, “there will be ‘nothing to stop the government from forcing individuals to go on the nightly news and accuse people of committing crimes the government never intends to prosecute.’ The government’s admonition to witnesses that they must tell the truth, or face perjury charges, allows the government effectively to become ‘the sole arbiter of what is true and what is not.’”
Clemons’ pitch missed the strike zone. “These laws encourage reluctant witnesses who, like Defendant, have an economic incentive to be dishonest, to instead tell the truth. See Darrah v. Hinds, 720 S.W.2d 689, 691 (Tex.App.-Fort Worth, 1986, ref. n.r.e.) (citing James v. Brown, 637 S.W.2d 914, 917 (Tex.1982)). Further, Plaintiff’s concern about prosecutors’ improper use of witness statements to destroy a suspect’s reputation is not an issue before this Court. If Plaintiff believes that either the federal investigators or the Mitchell Commission overstepped the bounds of the law, he is free to bring suit against those entities, subject to possible immunity defenses. This Court, however, is solely concerned with the behavior of Defendant. The Court will not accept Plaintiff’s invitation to thwart the government’s allegedly coercive behavior by punishing Defendant, who was the target of that behavior.”
Clemons’ other argument that the defendant’s statements were not made in the due course and furtherance of a federal investigation also failed. The court noted specifically that McNamee “introduced an affidavit from an Assistant United States Attorney representing that (his) statements were compelled as part of an ongoing government investigation into the distribution of anabolic steroids, HGH, and money laundering, facts Plaintiff has not contested. The Court finds this evidence to be sufficient.”
Finally, the court addressed the one new document, “a government brief opposing the defendant’s motion for new trial in the case of USA v. Tammy Thomas,” that Clemons used in his motion for reconsideration. The document was designed to support his argument that prosecutors “never intended to charge Plaintiff as part of the federal investigation. Plaintiff highlights the portions of the brief in which the government states that professional athletes are not targeted for mere steroid use.
“In that case, Defendant Tammy Thomas, a former cyclist, was charged with making false declarations to a grand jury and obstruction of justice. Thomas testified before a grand jury in 2003 in connection with an investigation of Balco Industries, which allegedly manufactured performance enhancing drugs and laundered money. Balco employees eventually pled guilty to distributing the drugs. Thomas testified regarding her knowledge of Balco and its employees, subject to an immunity agreement. The government then charged her with committing perjury before the grand jury, specifically by denying that she had ever used drugs from Balco or any other anabolic steroid.
“The brief does not support Plaintiff’s position, for two reasons. First, the fact that government investigators were not specifically targeting Plaintiff does not mean that Defendant’s answers to their inquiries about Plaintiff’s drug use were not related to a government investigation of some other person or entity. Second, while the brief indicates that the government does not prosecute athletes solely for using steroids, it acknowledges that the government does investigate athletes for the possible distribution of steroids, and, as the Thomas case indicates, athletes who lie about steroid use under oath.”
Turning to the argument involving slander per se, the court wrote that while it “did find that Plaintiff satisfied the threshold inquiry of whether Defendant’s statements were defamatory, it found that these statements did not constitute slander per se.
“The standard for determining if a statement is slander per se is stricter than that used to determine if it is reasonably capable of defamatory meaning. To assess a statement’s defamatory meaning, courts are required to consider the defamatory statement ‘as a whole, in light of surrounding circumstances, based upon how a person of ordinary intelligence would perceive the entire statement.’ Moore v. Waldrop, 166 S.W.3d 380, 385 (Tex.App.-Waco 2005, no pet.) (citing New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex.2004)). Similarly, when determining if a statement should be considered slander per se, the initial inquiry is ‘what construction would be placed upon such language by the average reasonable person or the general public, not by the plaintiff.’ Id. at 386 (citing Schauer v. Memorial Care Syst ., 856 S.W.2d 437, 448 (Tex.App.-Houston [1st Dist.] 1993, no writ)). If the statement seen in this light has but one clear and obvious meaning, then the statement is slander per se. Id. (citing Gray v. HEB Food Store No. 4, 941 S.W.2d 327, 329 (Tex.App.-Corp. Christi 1997, writ denied)). However, for the purposes of determining if a statement is slander per se, if the statement is ambiguous, or if the full effect of the statement cannot be understood without extrinsic evidence, then the trial court must consider the explanatory circumstances. Id. at 386 (citing Montgomery Ward & Co. v. Peaster, 178 S.W.2d 302, 305 (Tex.Civ.App.-Eastland 1994, no writ)). Once the court considers extrinsic evidence and innuendo, the statement becomes slander per quod, because innuendo not only reflects the meaning of the statement but also ‘illuminates the amount of harm the plaintiff may have suffered.’ Id. at 386.
“The Court does not believe that Defendant’s statements to Pettitte have ‘one clear and obvious meaning’ that Plaintiff was committing a crime. That is certainly one reasonable interpretation of the statements, which is why the Court found that they were capable of defamatory meaning. In order to arrive at the conclusion that the statement implicates Plaintiff in a criminal act, however, the Court has to consider the extrinsic evidence of Plaintiff’s status as a professional baseball player. It is this consideration which makes the statements, at best, slander per quod.”
Clemons V. McNamee; S.D. Tex.; Civil Action No. 4:08-cv-00471; 6/30/09.
Attorneys of record: (for plaintiff) Russell Hardin, Jr., Anthony Douglas Drumheller, Derek Hollingsworth, Rusty Hardin and Associates, PC, Houston, TX. (for defendant) David R. Miller, Attorney at Law, Houston, TX, Debra L Greenberger, Earl S. Ward, Richard Emery, New York, NY.


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