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Strategy in Court of Public Opinion: the Clemens Case

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Strategy in Court of Public Opinion: the Clemens Case G THE B IN EN V C R H E S A N 8 D 8 8 BA E 1 R SINC Web address: http://www.nylj.com VOLUME 239—NO. 34 THUrsday, FEBRUary 21, 2008 OUTSIDE COUNSEL BY KATHERINE A. HELM AND GENE W. LEE Strategy in Court of Public Opinion: The Clemens Case don’t care what other people think” is an do you draw the line between spin-doctoring and “ oft-uttered phrase that conveys a hackneyed abusing the truth? Enter the skillful attorneys. sentiment. Many people say it, but few truly This kind of a case was made for trial in the Imean it. Popular opinion, by its very nature, daily press, where every opinion counts as much as informs the attitudes and beliefs of most people to another and everyone has a right to express his or some degree. Some people base their entire self- her viewpoint. No doubt that everyone will have worth on popular opinion of themselves. Others, like a viewpoint about how a high-profile figure should politicians and celebrities, may stake their professional behave. Americans want famed figures to be role careers on it. models of all personal and public virtues. Mr. Clemens Consider the present controversy surrounding has been unabashed in using his celebrity status to Roger Clemens. Here is one celebrity who has, over appeal to his fans to give him the benefit of the doubt. the past two months, faced severe public scrutiny Katherine A. Helm Gene W. Lee A role model of an athlete must be a role model as a over the listing of his name in the Mitchell Report human being, right? Realistic or not, Mr. Clemens may on performance-enhancing drugs in baseball. Mr. be able to shroud himself in controversy to suspend Clemens’ name appeared in the report thanks to his disbelief, or at least to kick up enough dust to cloak former personal trainer, Brian McNamee, who told his actions in ambiguity, in the minds of the public, federal investigators that he injected Mr. Clemens Mr. McNamee said he was injecting Mr. Clemens and his baseball colleagues and, perhaps most critically, with steroids and human growth hormone in 1998, before the time Mr. Pettitte admits to having received the Hall of Fame voters. 2000 and 2001. such injections from Mr. McNamee. Public opinion sustains itself. No facts are needed Mr. Clemens has publicly denied the allegations, when speculation alone can form the basis of the stating that Mr. McNamee injected him only with prevailing public view. So how should things get painkiller, lidocaine, and vitamin B12. Mr. Clemens’ Congressional Committee Hearings resolved, now that the whole nation is watching? lawyers, Rusty Hardin and Lenny Breuer, have set out At present, congressional committee hearings are Does Mr. Clemens need to speak through his lawyer to clear their client’s name by defending Mr. Clemens superseding action in the courts. Mr. Clemens and when addressing the public? No, although Barry Bonds in the press and before Congress, and by aggressively Mr. McNamee went mano a mano in a hearing of the should serve as a cautionary tale on what not to do. questioning Mr. McNamee’s credibility, drumming House Committee on Oversight and Government Mr. Bonds must now convince a jury that he did out a suit against Mr. McNamee for defamation. The Reform on Feb. 13, and the results weren’t pretty. not perjure himself when he told a grand jury he suit alleges that Mr. McNamee’s statements about Dissembling was the name of the game and thought the substance he received from his trainer Mr. Clemens were groundless and malicious and partisanship was palpable. It is entirely possible Mr. was flaxseed oil, although his case is distinguishable. that they served to injure Mr. Clemens’ character, Clemens or Mr. McNamee or both may end up facing Mr. Clemens hasn’t been called before a grand jury reputation, financial status, mental state, you name a Justice Department perjury investigation, as have (yet). Mr. Clemens hasn’t been sued by anyone it. Mr. McNamee’s lawyers, Richard Emery and Earl other athletes such as Barry Bonds, Marion Jones, and (yet). All of this begs the question: What is the Ward, had previously threatened a defamation suit Miguel Tejada. The only real clarity that emerged is role of Mr. Clemens’ lead lawyer, Rusty Hardin, against Mr. Clemens but none has been filed. that, for the foreseeable future, this case is going to be now and going forward, with a Justice Department Setting aside the intricacies of tort law on libel and tried in the hearts and minds of the American public, investigation looming? slander, the crux of any defamation suit is whether i.e., the court of public opinion. In that setting, what the defendant made false statements of fact. Truth rules and proofs apply? Attorney’s Role is almost always a defense. Proving truth may be difficult for Mr. McNamee, although his odds seem No Defined Burdens of Proof Rusty Hardin’s role is to persuade the public that Mr. to be improving. Within the past week or so, Mr. Clemens let Mr. McNamee inject him, but that Mr. McNamee unveiled drug paraphernalia and dated The contradictory accounts of erstwhile friends Mr. Clemens did not believe (or might not have known) photos that he claims provide corroborating evidence Clemens and Mr. McNamee lie at the heart of the he was being injected with illegal substances. Besides, for his eyewitness accounts of Mr. Clemens’ drug use. controversy. Mr. Clemens and Mr. McNamee each is as Mr. Clemens has argued in his public statements What is more, former teammate Andy Pettitte, who seeking to advance his version of the events. In the to date, how do you prove a negative? As every good was also named in the Mitchell Report, testified to court of public opinion, unlike in a court of law, there defense attorney knows, a plea of “not guilty” doesn’t congressional lawyers that Mr. Clemens admitted to are no clearly defined burdens of proof. The burden mean you didn’t do it; it just means your opponent will having taken human growth hormone during the time largely depends on whether the majority of Americans have to prove it. No one knows this better than Rusty believe or disbelieve one of the parties over the other. Hardin, a former state prosecutor-turned-celebrity Mr. McNamee wants the public to believe he told the lawyer the New York Times has called a “raconteur, truth, and Mr. Clemens wants the public to disbelieve, showman, charmer, tactician, egotist” and a “charmer Katherine A. Helm is a technical adviser and or at least question, Mr. McNamee’s character and of juries and journalists.”1 Gene W. Lee is a partner in the litigation department credibility. But the truth depends on who defines it. Mr. Hardin rushed out of the gates doing and at Ropes & Gray. Evidence aside, the name of the game is spin. How saying all the right things to the press: “I believe a NEW York Law JOURNAL THUrsday, FEBRUary 21, 2008 client who’s telling the truth should tell the world crucial in assessing possible prejudice. Obviously, engage in public debate” that could obstruct the the truth.” Mr. Hardin advanced the theory that Mr. statements that are made closer to trial will be more administration of justice.4 Armed with the ruling’s McNamee is not a truth teller, and Mr. Clemens is. Mr. likely to taint a potential jury pool. latitude, Mr. Hardin has zealously tried to demonstrate Hardin declined to represent Andy Pettitte because Both Model Rule 3.6 and DR 7-107 contain that Mr. Clemens does not deserve to be tried for the Mr. Pettitte said Mr. McNamee was telling the truth specific safe harbor exemptions for statements to the accusations of the Mitchell Report. about him. Mr. Hardin advocated that his role is press that are not prejudicial. An additional general to appeal to the public’s sense of fairness and dispel provision, more powerful and more vague than any of Analysis negative assumptions about Mr. Clemens. Mr. Hardin the specific exemptions, allows for corrective publicity. has maintained that he is representing Mr. Clemens That is, Rule 3.6(c) and DR 7-107(a) specifically A measured response to negative publicity is one because he believes him. It’s a simple story and easy to authorize a lawyer to protect a client by making that is limited to contain just enough information to follow, which means it will have many followers. statements to mitigate recent adverse publicity that mitigate the prejudice created by the statements of Mr. Hardin’s defense strategy has run into substantially prejudices the client. In practice, this others. Up to now, Roger Clemens’ case has been tried some trouble, and could well run into more, as exception can prove to be somewhat of a hornet’s primarily in the press. Mr. McNamee made statements Mr. McNamee’s lawyers, or Justice Department nest. Understanding just what sort of statements will to federal investigators that he knew or reasonably investigators, usher in circumstantial evidence. counteract the substantial prejudicial effect of recent should have known would be disseminated in the Never mind the significance or admissibility of the publicity, without causing further prejudice, can end Mitchell Report. evidence (bloody gauze?), for this isn’t about a trial up being anyone’s best guess. The Comment to Rule So what can Mr. Hardin do to mitigate prejudice to in court. It is about a trial in the press. Mr.
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