Accusation of affair erodes Clemens' credibility
In the following Q&A, Yahoo! Sports legal analyst Craig Silverman addresses potential repercussions of the accusations reported by the New York Daily News that Roger Clemens had a long-term affair with country singer Mindy McCready that began in 1991 when she was 15 and Clemens was 28.
Clemens was accused in the Mitchell Report of taking steroids. His accuser is his former personal trainer, Brian McNamee, and the two men testified in front of a congressional committee in February. Clemens denied under oath that he has ever taken steroids and a federal investigation is underway to determine whether he committed perjury. Clemens has filed a civil defamation suit against McNamee.
What do you make of today's reported claim that Roger Clemens carried on a lengthy affair with country singer Mindy McCready?
This is brutal for Roger Clemens and his family, but it was predictable. Brian McNamee was a close associate of Clemens for many years and it was easy to anticipate that he would know secrets about Clemens' life beyond his training regimen.
Nasty public warfare had to be expected once Clemens accused McNamee of lying and sued him for defamation. For one, Clemens put his reputation at issue as part of that defamation claim. Second, he created an incentive for McNamee to swing back as hard as he could.
Will the McCready situation become part of the civil lawsuit?
It already has. McNamee's attorneys are leading the charge on this issue, claiming that Clemens' reputation and credibility are flawed, aside from the steroids accusations.
The standard for pre-trial discovery (depositions, interrogatories, etc.) is not whether the questions and anticipated answers would be relevant at trial, but the looser standard that the questions and answers might lead to the discovery of relevant evidence. Nearly anybody who spent private time with Clemens is fair game because they might have witnessed steroid use or know of circumstantial evidence based on observations of physical or mental changes in Clemens.
Furthermore, Clemens' questionable acts aside and apart from steroid use diminish his reputation, making them relevant to the issue of damages. For example, if you accuse mobster Sammy (The Bull) Gravano of drug abuse and he sues you for damaging his reputation, you can make a persuasive argument that other facts damaged Gravano's reputation aside and apart from the alleged defamation.
Do you think Clemens will press forward with his civil lawsuit against McNamee?
Right now the judge must rule on a motion by McNamee's side that requested Clemens' lead attorney, Rusty Hardin, be removed from the case because he represented pitcher Andy Pettitte, who is a key witness. Beyond that issue, even if Clemens dropped his suit, McNamee probably would countersue Clemens. McNamee smells a payday, a huge settlement from Clemens to end the public bloodletting before a trial.
Could the McCready revelation impact the federal prosecutors' decision regarding whether to file perjury charges against Clemens?
It could have a big impact if it leads to witnesses that saw or knew of Clemens' steroid use. It's conceivable that McCready could testify that she saw no evidence of steroid use, but that would be discounted by a jury because of her close relationship with Clemens. Jurors don't expect somebody close to the accused to offer evidence of criminality.
There is considerable prosecutorial discretion when it comes to filing any criminal charge. Until the Mitchell Report, Clemens had a strong reputation, and accordingly, prosecutors would have needed an air-tight case to convince a jury he was guilty. As Clemens' reputation diminishes, however, the likelihood of a star-struck jury also diminishes.
Is there any chance of Clemens being criminally prosecuted for having sex with a child given the report that McCready was 15 when their affair began?
It's extremely unlikely. Each state determines the age of consent within its borders. In Florida, where Clemens' affair with McCready allegedly began 17 years ago, the age of consent is 16. However, the statute of limitations would have expired long ago. Even in a state with an expanded statute of limitations for child molestation, the only way I can conceive of this charge even being investigated is if McCready goes to law enforcement with evidence and there is corroboration.
Was it wise for Clemens to have brought the defamation lawsuit against McNamee in the first place?
It is generally foolish for a public figure to bring a defamation lawsuit. If the individual being sued has private information about the famous person, that's a strong reason to avoid public litigation.
On the surface, it appears Clemens may be the victim of bad advice from Hardin and the rest of his legal team. Hardin is a flamboyant lawyer who enjoys publicity and public arguments. While this kind of media coverage may be good for Hardin's firm, it is bad for Clemens, whose reputation is in freefall. It could have been Clemens who insisted on pressing forward, but the mark of a good lawyer is client control. This is embarrassing for Rusty Hardin. It is not one of his finer moments.
Now we have Hardin denying that there was sex involved in this "close family friend relationship" between McCready and Clemens. It seems odd that a professional baseball player would have a long-term nonsexual relationship with an attractive female singer that involved private trips and private encounters. Add McCready's problems with drugs and criminality, and the result is another nightmare for Clemens, both in the court of public opinion and possibly in a court of law.
