Lawyers ask judge to rethink decision

Updated: March 17, 2009, 10:01 PM ET
Associated Press

HOUSTON -- Lawyers for Roger Clemens asked a federal judge to reconsider his decision dismissing most of a defamation suit the pitcher filed against his former personal trainer over allegations of performance-enhancing drug use.

U.S. District Judge Keith P. Ellison dropped most of Clemens' lawsuit against Brian McNamee on Feb. 12, saying statements McNamee made to baseball investigator George Mitchell were protected.

McNamee told federal agents, Mitchell and a House of Representatives committee that he injected Clemens more than a dozen times with steroids and human growth hormone from 1998 to 2001.

In a filing Monday, Clemens' lawyers asked Ellison to examine whether he was wrong in holding McNamee's statements to Mitchell were absolutely privileged and whether Ellison was wrong in deciding McNamee's statements to Clemens' former New York Yankees teammate Andy Pettitte about Clemens using drugs weren't slanderous.

Clemens lawyers' also want Ellison to reconsider whether the court has jurisdiction over the claims arising from what Clemens insists were McNamee's false statements to Mitchell and to Sports Illustrated's Web site.

"Quite frankly, I don't understand it, and it should be disposed of pretty easily and pretty quickly," Richard Emery, one of McNamee's lawyers, said Tuesday.

He said he will be filing a response to the court contesting the Clemens motion.

"This is just an attempt to get the judge to rehash," Emery said. "It seems highly inappropriate and somewhat insulting to the judge."

McNamee's attorneys last month argued Clemens' lawsuit should be thrown out because McNamee was compelled to cooperate by federal investigators. Ellison agreed, but he left intact that part of the suit over McNamee's statements to Pettitte that Clemens had used HGH and steroids.

Clemens has repeatedly denied McNamee's accusations and sued last year.

In their latest argument, Clemens' lawyers said the decision to grant McNamee absolute immunity for statements he made to Mitchell "unwittingly gives prosecutors the power to grant absolute immunity to individuals who maliciously and falsely make public statements that accuse another of a crime."

"It effectively permits the government to try individuals in the court of public opinion and thereby destroy their reputation and livelihood regardless of whether the government ever intends to charge the person with a crime, much less prove the allegations in a court of law," Clemens' lawyers wrote.

Clemens' lawyers contend Ellison's ruling rewards such tactics, removes the possibility of a defamation suit as a way of clearing the names of "innocent victims of such smear campaigns" and leaves the victims "utterly defenseless." They also insisted that McNamee's statements to Pettitte and SI.com are slander.

"There can be no doubt that charging a professional baseball player with using steroids and HGH injures the player's business, profession and calling and imputes to him the commission of a crime," the lawyers said in their motion.


Copyright 2009 by The Associated Press

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