McNamee lawyer predicts criminal investigation of Clemens

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February 11, 2008
— A lawyer for Brian McNamee believes the Justice Department will open a criminal investigation into Roger Clemens’ denials of doping.

Meantime, the chairman of a congressional committee said comments attributed to one of the pitcher’s lawyers could be interpreted as trying to intimidate a federal law enforcement official.

Clemens gave a five-hour deposition last week to staff lawyers of the House Committee on Oversight and Government Reform prior to Wednesday’s public hearing. McNamee, former personal trainer to the seven-time Cy Young Award winner, gave a seven-hour deposition.

“I think there will be a criminal prosecution after Wednesday, and that means there will be grand jury proceedings and subsequent proceedings,” Richard Emery, one of McNamee’s attorneys, said Sunday. “I don’t see there’s any possibility that Brian has any jeopardy. I only see the possibility of Clemens getting investigated by Justice, whether or not Congress refers it.”

A message left Sunday night requesting Justice Department comment was not immediately returned.

Told of Emery’s comments, Rusty Hardin, Clemens’ lead lawyer, said: “They have consistently acted and indicated that they have a pipeline to agents of the Department of Justice. Whether they do or not, it certainly raises a lot of questions of whether what’s going on here is proper. So I’m not going to express any predictions of what will or will not happen.”

McNamee says he injected Clemens with steroids and human growth hormone at least 16 times in 1998, 2000 and 2001, accusations Clemens has repeatedly denied. Both are set to testify Wednesday on Capitol Hill in what figures to be a day of high drama.

“Our position is very simple: Roger did not take steroids, he did not use human growth hormone, and he has demonstrated that he is willing to repeatedly testify under oath as to the truth of those matters,” Hardin said.

McNamee last month gave the Justice Department what he says are needles from times Clemens used performance-enhancing drugs, evidence that the pitcher’s legal team says is manufactured. Emery said he thinks there will be a Justice Department investigation of Clemens even if the committee doesn’t ask for one.

“If the tests come back that he is connected with those syringes, they have evidence that contradicts his sworn statement to federal officials,” Emery said.

Hardin was quoted in Sunday’s New York Times as saying it would be “brazen” and “unbelievable” if IRS Special Agent Jeff Novitzky, a key prosecutor in the BALCO drug cases, attends the hearing.

“If he ever messes with Roger, Roger will eat his lunch,” Hardin was quoted as saying.

Rep. Henry Waxman, the committee chairman, wrote a letter to Hardin on Sunday saying that some comments by Hardin and McNamee’s lawyers were “inadvisable.”

“I do not know your intent in making this statement, but under one interpretation it can be seen an attempt to intimidate a federal law enforcement official in the performance of his official duties,” Waxman wrote. “It is not your client’s prerogative to dictate who attends or does not attend the hearing. ... I trust you did not intend your comments to be a signal that there could be adverse repercussions to a federal law enforcement official for attending the hearing or taking other official actions.”

Hardin wrote to Waxman late Sunday, saying his comments were “inelegant” and “I regret it.” Hardin said he meant that if Novitzky pursued legal action against Clemens he would lose, and the remarks were “not meant as a threat of personal action against agent Novitzky.”

Still, Hardin criticized Novitzky in the letter for “conduct that could reasonably be perceived as witness intimidation” and conduct “intended to chill Roger Clemens’ attempts to publicly defend his reputation.”

The committee called this hearing as part of its probe into the Mitchell Report, in which McNamee went public with his accusations against Clemens. The same committee last month asked the Justice Department to investigate whether former AL MVP Miguel Tejada lied when he told staff in 2005 that he never took illegal performance-enhancing drugs and had no knowledge of other players using or talking about steroids. The FBI’s field office in Washington is handling that inquiry.

Barry Bonds, baseball’s career home run leader, was indicted in November on four counts of perjury and one count of obstruction of justice in connection with grand jury testimony in which he denied knowingly using performance-enhancing drugs.

Clemens spent two days visiting congressmen last week and may again on Tuesday.

His agent, Randy Hendricks, responded Sunday to an article by four professors from the University of Pennsylvania’s Wharton School who criticized an 18,000-word statistical report Hendricks Sports Management issued to rebut accusations that the pitcher’s career rebounded about the time he is accused by McNamee of using performance-enhancing drugs.

Hendricks’ report compared Clemens’ performance during the second half of his career to those of Nolan Ryan, Curt Schilling and Randy Johnson.

“By comparing Clemens only to those who were successful in the second act of their careers, rather than to all pitchers who had a similarly successful first act, the report artificially minimizes the chances that Clemens’ numbers will seem unusual. Statisticians call this problem selection bias,” professors Eric Bradlow, Shane Jensen, Justin Wolfers and Adi Wyner wrote in Sunday’s Times.

They compared Clemens’ ERA and walks plus-hits-per-inning with those of 31 pitchers since 1968 with 3,000 innings and 10 or more starts in at least 15 seasons.

“The available data on Clemens’s career strongly hint that some unusual factors may have been at play in producing his excellent late-career statistics,” they said, while adding, “in any analysis of his career statistics, it is impossible to say whether this unusual factor was performance-enhancing drugs.”

Hendricks said the criteria used by the professors was flawed, and that they ignored criteria such as Clemens’ ERA margin vs. that of the league and strikeouts. Hendricks’ report tried to refute any perceived misconceptions that Clemens’ career was on the downside when he left Boston after the 1996 season. While the professors claimed Clemens was in decline in his late 20s, Hendricks pointed out Clemens was an All-Star in consecutive years from age 27-29, finished second in Cy Young at age 28, then won it the following year.

“The professors make the mistake of thinking that his career arc should look like the arc of every other pitcher in their selected group,” Hendricks said in a statement. “These ‘statisticians’ are engaging in precisely the kind of insinuation with their words that they say cannot be proven by statistics.”


AP Sports Writer Howard Fendrich in Washington contributed to this report.

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