Was Former Senator Mitchell Justified in Naming Names in His Report on Major League Baseball?

By EDWARD LAZARUS

Thursday, Dec. 20, 2007

With the release of the report authored by former Senator George Mitchell on the use of performance-enhancing drugs in Major League Baseball, we learned that all those tape-measure home runs in the 1990s, those ridiculously muscle-bound second basemen, and those journeyman pitchers who suddenly discovered an extra 8 MPH on their fastballs didn't exactly come about naturally. Stating the obvious only cost Major League Baseball $20 million in legal fees.

But if the general picture painted by Mitchell's report was utterly unsurprising, the details it provided have nonetheless spurred considerable controversy. Much of the debate focuses on Mitchell's decision to name some very famous names, including that of Roger Clemens - who remained highly effective last season at age 45, and is a serious candidate for the honor of being the best pitcher of all time.

Was Mitchell justified in "outing" dozens of big leaguers and casting a pall over some of the game's premier players? In this column, I'll consider that issue.

The Influence of Legal Principles on the Debate over the Mitchell Report

Like so many controversies in our society, the argument over Mitchell's choice to name names often invokes legal principles. Critics of the Mitchell Report insist that it was wrong to damage the reputation of All-Stars and potential Hall of Famers based on "hearsay" - that is, the testimony of witnesses who were not subject to cross-examination - or evidence that falls short of proving guilt beyond a reasonable doubt, which is, of course, the applicable standard in criminal cases. (In civil cases, the standard is simply a preponderance of the evidence, which translates roughly to a rule of "more likely than not.") The named players, these critics charge, will be "convicted in the court of public opinion" without due process, yet denied the benefit of the high standard those who are literally convicted of crimes enjoy.

Much of this criticism, however, depends on either an inaccurate or misguided invocation of legal concepts -- one that has entered the popular lexicon and thus is popping up everywhere. The Mitchell Report can be faulted on a number of levels. It fails to uncover very much new about the use of performance-enhancing drugs. It fails to give even an approximate answer to the question of how many players were on the juice at the height of the steroid era, much less how many still are. It lets the baseball owners off pretty easy, given how they turned a blind eye to steroid abuse year after year, rather than seriously confront a problem that was adding to their profits.

But the charges of unfairness are over-hyped. Indeed, they say more about how devoted we are to our sports heroes than about where to draw the line between disclosure and non-disclosure of embarrassing facts.

The Hearsay Objection: Not as Strong as It May Initially Seem

The starting point for evaluating Mitchell's decision to name individual players must be the evidence on which Mitchell relied.

Much of this evidence comes from two sources: Kirk Radomski, a former New York Mets clubhouse staffer, and Brian McNamee, a strength coach for the Toronto Blue Jays and New York Yankees, who also served as a personal trainer to several named players, including Clemens.

Radomski testified under a plea agreement with federal law enforcement which placed him at great risk if he was later found to be lying to Mitchell and his staff. McNamee testified under an immunity agreement, which protected him from prosecution if he told the truth to Mitchell, but placed him in jeopardy if he was found to be lying.

Thus, while it might be said that both witnesses had a motive to implicate someone (and perhaps, especially, someone famous) in order to receive favorable treatment from law enforcement, neither Radomski nor McNamee had any apparent motive to falsely implicate particular players - and they had a very strong incentive not to lie, for falsely naming players, if the lie was discovered, would get then in tremendous trouble.

Both Radomski and McNamee were interviewed by Mitchell's group on multiple occasions, and always in concert with federal law enforcement officials. These officials vouched for the fact that the information Radomski and McNamee gave to Mitchell was consistent with the information each had previously provided to federal officials.

Both Radomski and McNamee testified mainly on the basis of personal knowledge. McNamee, for example, stated that he had served as Clemens's trainer at several points in Clemens's career and had personally injected Clemens with steroids on a number of occasions while Clemens played with Toronto and New York. These claims, which Clemens has now vehemently denied, were accompanied by time frames, locations, and other verifiable details.

In some instances, Radomski and McNamee described conversations they had with named athletes in which the athletes admitted to steroid use or requested steroids. But such statements are not unreliable (and, in court, inadmissible) "hearsay," as critics have charged. To the contrary, such statements are "admissions against interest," which are routinely admitted in court as evidence of guilt, under a longstanding hearsay exception.

The reason for the exception for "admissions against interest" is the belief that the person making the original statement (here, the steroid-using player) that contained the admission against interest need not be subject to cross-examination, because when one makes a self-incriminating statement, there is little motive to lie. As to the issue of whether such a statement was actually made (as opposed to whether it was true), meanwhile, on that issue Mitchell had Radomski and McNamee right in front of him, and could have cross-examined them to his heart's content. (The athletes and their counsel, though, had no such opportunity, and would have had a greater incentive to cross-examine aggressively.)

In contrast, a self-serving statement would definitely count as hearsay. Thus, if someone had told the Commission that a particular athlete proudly declared his non-use of steroids or angrily refused them when offered, then the Commission might have been justified in refusing to rely on that exculpatory statement if denied the ability to cross-examine the athlete himself.

There Are Strong Reasons to Believe Radomski and McNamee Gave Accurate Statements

In any event, the statements made by Radomski and McNamee - though given independently -- tended to corroborate each other, never seem to have contradicted each other, received corroboration from other sources, and were also partly confirmed by documentary evidence. For all these reasons, they seem quite reliable.

According to the report, for example, McNamee stated that Radomski supplied him with performance-enhancing drugs that he then passed on to the athletes he was training. McNamee said that he was introduced to Radomski by David Segui, another former player named in the report.

Radomski confirmed the Segui introduction and that he supplied McNamee with steroids and human growth hormone. Radomski also produced cancelled checks made out by McNamee to prove McNamee's payments for the drugs.

No less important, the credibility of Radomski's and McNamee's specific allegations against particular players (such as Clemens) gain support from the admitted veracity of their claims against other players. Several current and former players had admitted to their allegations even before Mitchell released the report. Since its release, a number of other confessions have been forthcoming.

All of these admissions tend to support the overall credibility of what Radomski and McNamee told Mitchell, including the most controversial charge, the one leveled against Clemens. In particular, Andy Pettite, Clemens's close friend and training buddy, has already admitted that what McNamee said about his is true. Pettite's admission, by confirming part of what McNamee told Mitchell, tends to confirm the rest.

Finally, McNamee's allegations are supported by the circumstantial evidence of the on-field performance and physical appearance of many of the named players. A number of the named players, such as Lenny Dykstra, a relatively small player, suddenly gained a miraculous amount of muscle bulk and weight. Others, like Eric Gagne, the Dodgers' one-time ace relief pitcher, went from mediocre to incredible over a single off-season.

Clemens is a case in point. In 1998, when Clemens was pitching for Toronto, his performance dramatically improved at a time neatly coinciding with the time frame for when McNamee claimed he was injecting Clemens with steroids. (Granted, McNamee if fabricating a lie, might have taken Clemens's well-publicized improvement into account, but the correlation should still carry some weight.)

The sad truth of the human condition is that trained athletes almost never take quantum leaps in ability overnight, or dramatically change in body type, or get better with age after they reach their mid-30s. And when someone defies these near universal truths, it is evidence, albeit circumstantially so, that drugs are at work.

Ultimately, Mitchell's Decision to Name Names Was Justified

Is all this enough to justify Mitchell's decision to name names? I think so. Mitchell's job was to investigate and to determine and report facts as best he could ascertain them. He had an obligation not to repeat unsubstantiated charges. But his allegations are well substantiated (even if not definitively proven)- and to have issued a report devoid of specifics would only have perpetuated the steroid era's phony veneer of authenticity.

Mitchell's report comes with no sanction attached, weakening the claims that criminal-law evidentiary rules and standards should have been used. He did not have the power to punish anyone. In fact, he called on baseball to refrain from handing out punishments, except perhaps in the most egregious cases.

In these circumstances, what Mitchell owed to the accused players was an opportunity to confront the allegations leveled against them. And Mitchell offered exactly that: He gave every named athlete the opportunity to confront the evidence against them and to present their own evidence.

Virtually to a person, the athletes declined to do so. They may rue that choice - as well as others they have made. But it is wrong to shift the blame to the messenger.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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