Filing first may give Rocket edge

BY JOHN JEANSONNE | john.jeansonne@newsday.com

January 8, 2008

By being first to file a defamation suit, and doing so in a Houston district court, Roger Clemens gained a "huge" edge on his former personal trainer, especially because Texas is "renowned for being a huge home-court advantage," baseball and legal observer Craig Calcaterra said yesterday.

"As they say, 'Texas is a whole 'nother country,'" said Calcaterra, a Columbus, Ohio, lawyer who runs the blog site ShysterBall.com, which combines his vocation with his baseball passion.

"It's expensive to get these things transferred," Calcaterra said, and Brian McNamee, in trying to convince everyone he was truthful in telling the Mitchell Report investigators that he repeatedly injected Clemens with performance-enhancing drugs, has made it clear he is painfully short of money.

Still, the case is a long way from going to court, and the very public battle for believability, despite the spectacular fireworks between the Clemens and McNamee camps, continues to offer no special insight as to who actually is telling the truth.

While McNamee planned to appear on ESPN in midafternoon, then withdrew, and Clemens angrily stated his case during a Houston news conference yesterday, "everybody is handicapping, aren't they?" Calcaterra said by telephone. "I've got my own opinions, too, but that's pretty irrelevant."

From a legal standpoint, several lawyers agreed, there have been plenty of unorthodox developments so far. For starters, Clemens' appearances - on an Internet video last week, on "60 Minutes" on Sunday and at yesterday's news conference - are not necessarily the tack many attorneys would recommend.

"The worst thing is to be lawyer of a prima donna ballplayer who's used to shooting from the hip," said Willamette University College of Law professor Dean Richardson, noting that "once something is said," it's difficult to take back.

"There can be some loose cannons you can't control," he said, "so you let the lawyers come up with the specifics."

News that Clemens and McNamee had spoken by phone Friday, first reported by Newsday, prompted some talk of possible witness tampering - especially given Congress' request for both men to appear under oath at a Jan. 16 hearing. But Calcaterra noted that the phone call occurred before any legal action was initiated, removing the tampering threat.

More surprising was that a tape of the 17-minute call was played at yesterday's Clemens news conference, though it was no more conclusive regarding truth-telling than any other revelations to this point. While Clemens' body language during his "60 Minutes" appearance may trigger yet more handicapping, Calcaterra dismissed that as "certainly not relevant," and another lawyer sarcastically said, "And we're going to get somebody to read tea leaves next."

While Clemens raged at the rush to judgment and McNamee's lawyer said he intends to file a countersuit against Clemens, both sides insisted they invite the chance to testify to Congress under oath. But even if this gets to a jury trial in Houston, where Richardson said "having a jury composed of [Clemens'] fans certainly wouldn't hurt," he added that "proving falsity and scienter [knowledge of falsity or reckless disregard of the truth] is tough for both Clemens and McNamee, absent smoking-gun evidence."

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