By Joel Cohen & Bennett L. Gershman

Daily upDates on www.nlj.com THE WEEKLY NEWSPAPER FOR THE LEGAL PROFESSION monDay, january 28, 2008 opinion n the mitchell report in all likelihood his reporting of that event would have raised stronger suspicions and ac- tually reinforced his identification of those individuals about whom a player refused to talk. Why a public outing? Even a player like Derek Jeter, baseball’s para- digm for good sportsmanship, about whom no one has ever raised doping questions, might By Joel Cohen & Bennett L. Gershman special to the nlj have been placed in the position of incriminat- ot surprisingly, the credibility fanatic; a demagogic, McCarthy-like legislator; ing, if only through hearsay, other players and of the now-famous Mitchell Re- a child; or a right-wing militia. George Mitchell teammates, friends or not. Indeed, it’s possible port that publicly identified 85 is a public figure with an unimpeachable reputa- that several of the named players, innocent or baseball players as having used il- tion for competence, integrity and indepen- with mitigating circumstances, may have faced legal drugs is about to be tested not dence. He was a federal prosecutor, a federal a similar predicament and thus chose not to Njust in the court of public opinion, but in a real judge and Senate majority leader. Still, the indi- be interviewed. courtroom, as well as in Congress. Roger Clem- vidual players who—unlike baseball’s commis- ens and Brian McNamee and their lawyers are sioner, Bud Selig—had no say in yielding au- The players’ predicament already at each others’ litigation throats, Clem- tonomy to Mitchell, had much more to lose The named players clearly face a predica- ens drawing first blood by filing a lawsuit attack- than Selig. For if Mitchell were to determine ment in proving their innocence. How do they ing the credibility of McNamee, the “star wit- that sufficient evidence existed to allege the use repair their stained reputations? As a “public ness” in the Mitchell Report. The day before he of drugs, they were simply unable to stop him figure,” a named player could not realistically filed his lawsuit, Clemens went public on 60 from publicizing their names. Selig chose to sue Mitchell, who under the law of defamation Minutes to defend himself, presumably to gauge give Mitchell a blank check in how he reported unquestionably proceeded in good faith and the reaction of an increasingly skeptical public. his findings; the players didn’t. without malice. This is so, especially since fed- The House has scheduled public hearings next True, Mitchell did not name names reck- eral prosecutors advised him that the informa- month at which Clemens, McNamee and other lessly or gratuitously. He offered each accused tion from the cooperating witnesses was consis- witnesses have been asked to testify, which will player an opportunity to give his side of the tent with what they previously told the inevitably accentuate the harm to players story. Reportedly, one player did talk Mitchell prosecutors. At least Barry Bonds, criminally named in the report who “may” be innocent. out of naming him. But was that enough pro- indicted and facing trial in a public courtroom Public identification of people suspected of tection for a player who was to be named? Sup- in San Francisco, will have a chance to publicly wrongdoing is a dangerous practice. U.S. history pose the player was indeed innocent, but the clear his name. is replete with public accusations of individuals, cooperating witnesses—“turnarounds” work- There is little question that, if Mitchell had often falsely, for being witches, communists, ing off federal jail terms or seeking immunity— not named names and simply made conclusions child molesters and aliens. They are stigmatized, persuaded Mitchell that there was a sufficient about widespread drug use and the need for censured and punished, often without a fair op- evidence to make an accusation. The player’s strong systemic reforms, his report would have portunity to rebut the charge. The “blacklist” of denial would appear, but, of course, beside a appeared less credible and been given less atten- the 85 baseball players identified in the Mitch- Mitchell accusation. tion. It appears that Major League Baseball ell Report occupies a new and unusual chapter Also, undoubtedly, if a player did agree to needed to have a George Mitchell not only con- in the public “outing” of alleged wrongdoers. be interviewed, Mitchell would ask him—as duct a vigorous investigation but also identify Put simply, was it fair and responsible to publicly would any intelligent investigator—what he alleged wrongdoers. However, given the proto- identify the players accused of illegal drug use? knew about other players. Surely Yankees col he chose, there may be innocent victims To be sure, the accuser is not a religious pitcher Andy Pettitte, who, after the report, whose protestations will be heard but, in most admitted to twice using human growth hor- cases, not believed. nlj mone, would have been asked that question. Joel Cohen is a partner at Stroock & Stroock & And, almost as surely, a truthful answer would Lavan in New York and an adjunct professor of have pointed to his good friend, teammate and professional responsibility at Fordham University fitness mentor, Clemens. Reprinted with permission from the January 28, 2008 edition of School of Law. Bennett L. Gershman is a professor Perhaps players could have tried to condi- THE NATIONAL LAW JOURNAL. © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission at Pace Law School and the author of Prosecutorial tion an interview on “I’ll talk about me, no one is prohibited. For information, contact 212.545.6111 or visit Misconduct (West 1999). else—I ain’t a rat.” But even if Mitchell agreed, www.almreprints.com. #005-02-08-0019.

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