The Law, Cy Young, tape recordings...and baseball's pitch.

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Written by Rolando Pasquali

 

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The commentary on this page is based upon news accounts of current events and relies upon the accuracy of news information circulated by those news sources. If that information is inaccurate, or is later determined to be misleading or incomplete, the information and/or the conclusions reached in this article may change. This article is not intended to distribute factual information about persons or events in the news, but only to state this author's personal opinion of how current news events, if true and accurate, apply to existing general principles of law. This article was never published but many of the OTHER articles on this website were published in legal journals and in newspapers of general circulation. Each article is based upon general principles of California Law in existence at the time that it was written. The law constantly changes. Therefore the articles, including this one, may contain information which is out of date. Also, even a small difference in facts can change how the law applies to any situation. No information in this article or anywhere on this website constitutes legal advice. These articles do not create an attorney-client relationship between you and this office. If you need legal advice, contact this office or an attorney in your area

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The Legal Ins and Outs of...

  • Roger Clemens and the Secret Tape Recording litigationlitigation insurance bad faithlitigation Title VII lawye will contests

Roger Clemens, under the watchful eye of his lawyers no less, surreptitiously tape recorded a call to his former trainer, Brian McNamee. Such is the account of our national newspaper of record, The New York Times. The Times also claimed that the Clemens defamation lawsuit against McNamee “implies” that Clemens and his lawyer “suspected what was coming “ in the Mitchell Report days before its release, contradicting Clemens’ interview with 60 Minutes where he “maintained he did not know ahead of time that he would be named in the Mitchell Report” as a user of steroids and HGH. Against this backdrop, Clemens returned a call from trainer McNamee whom the Times says had contacted Clemens asking that Rocket speak with his “ailing 10-year-old son.” With his lawyers listening and “the tape running,” the Times reports, Clemens told McNamee that he, Rocket, “never did [performance-enhancing] drugs.” Clemens' lawyer then places great weight upon McNamee’s failure to refute The Rocket during that conversation. The Clemens pitch has two problems. First, it looks bad. Second, it doesn’t make sense.

The Times article doesn’t pinpoint the state(s) from which Clemens and McNamee were each speaking. Without that, it is not possible to analyze whether state wiretap laws were violated. This law office is situated in California; here, an unauthorized secret tape recording of an otherwise confidential telephone conversation would be a crime unless both parties to the conversation agreed to be taped (California Penal Code Sec. 632). That isn’t the situation either federally, or in many states such as Georgia, where recording is prohibited unless one party to the call consents. But while Clemens and his lawyers may legally be OK, secret taping just looks bad. Clemens has filed a lawsuit for defamation. That most juries will be deeply disturbed by an a-la-Watergate secret taping under the circumstances of an ostensible call to a 10-year-old seems beyond dispute. If they are bothered enough, they’re not going to go with Rocket’s interpretation of the evidence. And interpretations may be all the we have here because, as the San Francisco Chronicle reports, The Rocket didn’t get McNamee to say “anything definitive on the tape.”

The next problem faced by Rocket’s team is the circumstances under which silence is meaningful. If the Times is right, and Brian McNamee had contacted Rocket because “he wanted Clemens to talk to McNamee’s ailing 10-year-old,” one wonders what McNamee would have said in response to almost anything. Put another way, it would make sense for McNamee to remain mute under the circumstances. If you need a favor, you don't tick the other guy off by picking fights...or nits...with his interpretation of history. Team Clemens seems to be focusing on the legal concept of “Adoptive Admissions,” recognized both federally (Federal Rule 801) and in many jurisdictions. The reasoning behind this rule is that a person faced with a statement which is false under circumstances where most people would deny its falsity “adopts” it as true by failing to refute it. For example, someone locking his keys in his own car and trying to open the door with a clothes hanger would likely deny the accusation if a nosey bystander suddenly began shouting “stop thief!” He who did not raid the cookie jar is apt to say “no,” when accused by mommy. Again, while the Clemens people may be technically correct, they’re apt to run into a common sense defense at trial. To quote the Times report, Clemens’ team emphasized what didn’t happen on tape; according to Clemens’ people: “...when Roger says, ‘ I never did drugs,’ McNamee never says, ‘Yes you did.’” This simply forgets the backdrop of the entire call, an ailing 10-year-old! If the Times is right, and if McNamee contacted Clemens because he wanted Rocket to talk to his little boy, then McNamee had bigger fish to fry than to fight with Roger over those memories...McNamee had to have that call take place. It takes no genius to figure out that confronting Rocket on the issue of steroids risked Roger's hanging up. An ulterior purpose, a call to his boy, gave McNamee every reason in the world to humor, not irritate, a sports legend. Indeed, Rocket could probably have claimed immortality without so much as a peep from a father desiring that Clemens stay on the line and speak with his son.

 

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