Roger Clemens' lawyer again attacks Brian McNamee's immunity
Posted Apr 03 2009 11:03pm
Roger Clemens' lawyer threw a desperation pass this week in an effort to salvage his client's defamation suit against Brian McNamee, filing a document that again challenges the relationship between the trainer, federal prosecutors and former Sen. George Mitchell.
Attorney Rusty Hardin supplemented his own two-week old motion asking a federal judge to reconsider dismissing most of the defamation lawsuit Clemens filed shortly after the December 2007 release of the Mitchell Report with a filing that questioned granting McNamee immunity because his statements were crucial to an ongoing drug-distribution probe.
"It simply cannot stand that McNamee's maliciously false public accusations about Clemens' alleged drug use should be considered part of the federal investigation and thus cloaked with absolute immunity," Hardin wrote.
Hardin pointed out that assistant U.S. Attorney Matt Parrella - who has led much of the BALCO prosecution, including the Barry Bonds perjury case - recently argued in the case of Tammy Thomas, the cyclist who was convicted of perjury last year, that the purpose of the government's steroid probe was to nail distributors, not "alleged end-users" - to use Hardin's phrase.
Parrella submitted a letter in December to U.S. District Court Judge Keith Ellison in explaining that he asked McNamee to speak with former Senator George Mitchell as a condition of McNamee's cooperation.
"Taking this as true, it cannot be argued that granting an admitted drug dealer, McNamee, immunity and then forcing him to publicly accuse Roger Clemens of using steroids furthered an investigation that was designed to uncover and prosecute the illegal distribution of steroids," Hardin wrote.
Last month, Ellison gutted the defamation suit in part because of Parrella's letter, ruling that McNamee's cooperation with Mitchell was compelled by the government and immune from the defamation action.
"Brian was threatened with prosecution unless he cooperated and told the truth," said McNamee's lawyer, Richard Emery. "That's all that happened. Judge Ellison has already ruled on that."
As the BALCO investigation grew beyond California, Parrella and lead investigator Jeff Novitzky found new sources of the steroids and human growth hormone flowing into Major League Baseball. Among the suppliers they found were former Mets clubhouse attendant Kirk Radomski, who had provided drugs to McNamee.
Commissioner Bud Selig had asked Mitchell, the author of the report on steroids and major league baseball, to provide a comprehensive look at how performance-enhancing drugs gained a foothold in the sport. McNamee played a crucial role in describing how ballplayers learned about the sources of steroids and how the drugs were distributed to ballplayers.
The information provided by McNamee also helped Mitchell formulate recommendations to combat steroids that were later adopted by MLB. Criminal defendants are sometimes asked to provide information to the businesses they have damaged to help executives prevent future problems.
"The government wanted McNamee to redress the harm he did to baseball," a source familiar to the case told the Daily News.
Emery called the supplement to the motion "absurd."
"It's a reach, to say the least," said Emery. "If Rusty Hardin takes something out of context in a case in California, it's irrelevant to our case."