Silence of the Roger Clemens lawyer
From this Courtside Seat, Rusty Hardin looked brilliant by simply keeping quiet
We speak often in this space about the view from our Courtside Seat. We figure you understand we're using the phrase metaphorically. Usually. But last week, we literally viewed the Roger Clemens trial from a courtside seat. Something happened in that trial, and even though we watched it up close and personal, it's still hard to believe. So while we're also going to deal today with questionable tweets, endorsement contracts and a fascinating family squabble over some baseball memorabilia, we really have to start with ...
Silent But Deadly Lawyering
When federal prosecutors, on the second day of the Clemens perjury trial, began to show the jury a video known as "Government Exhibit 3b-2," Rusty Hardin, dressed in a bone-white suit, was leaning back in his chair, looking relaxed.
The video featured Rep. Elijah Cummings (D., Md.) in an effective and penetrating interrogation of Clemens at the fateful hearing of a House Committee in February 2008. In contrast to other committee members from both parties who had stumbled through ill-prepared questions and rambling, often incoherent statements, Cummings went straight to the heart of the matter, confronting Clemens with Andy Pettitte's statement that Clemens had told his former teammate that he'd used HGH.
It was easily the most memorable and dramatic moment of the hearing. Cummings' questioning is what prompted Clemens to make the now-notorious assessment that Pettitte had "misremembered" what Clemens had said.
In the opening moments of the video excerpt shown to the jury last week, Clemens was agreeing with Cummings that Pettitte "is one of the most honest people in all of baseball" and that he would trust Pettitte to offer the truth on any issue.
As the excerpt continued, Hardin remained in his chair, quiet and impassive. He must have known what was coming. He must have known that the video was about to show Cummings confronting Clemens with a sworn statement from Laura Pettitte, Andy's wife, that Andy had told her about the HGH admission from Clemens. And he most certainly knew that the mention of Laura Pettitte would be a violation of an order issued by federal district judge Reggie Walton at Hardin's request only 48 hours before the presentation of Exhibit 3b-2.
In the Congressional committee room in 2008, the Laura Pettitte statement was great theater. But in Judge Walton's courtroom, it was double hearsay ("hearsay within hearsay," according to Hardin). What worked well in a committee hearing was an obvious violation of the rules in a courtroom.
Hardin, one of America's great trial lawyers, just sat there. And sat there. Most lawyers, eager to protect their client from damaging evidence from a source as credible as Laura Pettitte, would have jumped to their feet to object that the video was about to trespass into forbidden territory -- the Laura Pettitte confirmation of Clemens' admission that he used HGH.
But Hardin sat there. He glanced around the courtroom as if nothing important could possibly be happening in what had been, until that point, a mildly boring morning.
But resisting the impulse to make an automatic (and valid) objection might turn out to be a bit of tactical genius that will save Clemens from what appeared to be an almost certain conviction and time in a federal penitentiary.
As the video continued to play on 12 monitor screens throughout the courtroom, Cummings voiced his faith in Laura Pettitte and in her confirmation that Clemens had used HGH. As Cummings was holding the Laura Pettitte affidavit up for the camera, Judge Walton called a timeout, stopped the showing of Exhibit 3b-2 and called the lawyers into a conference away from earshot of the jury.
Walton was clearly angry and demanded to know why prosecutors Steven Durham and Daniel Butler had not removed the references to Laura Pettitte from the video excerpt.
With the judge fulminating at the prosecutors, Hardin stood by, maintaining his tactical silence. When Judge Walton's rage peaked, Hardin finally suggested the judge must declare a mistrial.
If Hardin had objected earlier and stopped the video and, thus, stopped the jury from seeing and hearing Cummings' confirmation of Laura Pettitte's veracity, Walton would have been critical of the prosecutors but probably would have allowed the trial to continue. By waiting silently for the Laura Pettitte material that he knew was coming in the video, Hardin managed to produce the rarest of triumphs for a criminal defense lawyer: a mistrial with the possibility that the prosecutors won't be given a second chance to try their case.
Was it a brilliant strategic maneuver or dumb luck? Hardin is bound by a gag order and cannot discuss what happened. But, from my vantage point in the second row behind Hardin's trial table, it was a brilliant strategic maneuver. Most lawyers, as I've mentioned, would have jumped to their feet and stopped the video. But Hardin is not most lawyers. He saw what was coming, and he somehow knew that Judge Walton had the fortitude to do the right thing and declare a mistrial.
In 22 years of reporting on legal issues in sports, I have seen some brilliant lawyering. If there were a hall of fame for sports lawyers, my first three nominations for induction would be Greg Garrison for his successful prosecution of Mike Tyson for rape, Jeff Kessler and Jim Quinn for their antitrust triumphs that established free agency in the NFL, and Gerry Boyle for his defense of Mark Chmura against a bogus rape charge.
Hardin's masterly work on Exhibit 3b-2 would be next on my list.
'Real' CSI: ABC (Anybody But Clemens)
So will the federal prosecutors working the Clemens case move to re-try him? Not if they listen to a Texas congressman who wants them to drop the case and focus on "real crime."
"We've got more than 100 terrorists in Guantanamo who need to be prosecuted, and they're wasting their time on a case that never should have been filed," says Rep. Ted Poe (R., Texas), a former prosecutor in Houston and a judge who presided over more than 20,000 criminal cases.
"We had no business investigating steroids in baseball," Poe continues. "It was a complete waste of time and money. The hearing was more to generate publicity for members of Congress than it was to investigate baseball."
Poe was the only member of Congress contacted by ESPN.com who was willing to discuss the obstruction of Congress charges against Clemens this week. Perhaps the others can be excused if they are immersed in the debt-ceiling debate, but both Henry Waxman, the chairman of the House Committee on Oversight and Government Reform who signed the letter asking prosecutors to investigate Clemens' testimony, and Cummings declined to respond to queries from ESPN.com on whether Clemens should be re-tried.
Darrell Issa (R., Calif.), the current chairman of the committee, did not return phone calls and emails from ESPN.com. Eleanor Holmes Norton (D., D.C.), whose district includes the scene of the supposed crime (Committee Room 2154 in the Rayburn House Office Building), and the federal prosecutors working on the case also could not be reached for comment. Many others also didn't respond to ESPN.com queries.
So it's hard to know if there is anyone in the Congress who feels that federal prosecutors should be given a second chance to present their evidence against Clemens.
Judge Walton will make the call on a second trial. He is expected to make that decision in September.
Frittering Twittering Away $1 Million
When Steelers running back Rashard Mendenhall signed a four-year, $1.02 million extension of his endorsement deal with Champion in August 2010, it included a contractual requirement that he provide 12 "unique posts" on social media.
The folks at Champion wanted Mendenhall to offer his "thoughts and views regarding his partnership with the Champion brand" and "off-the-field issues."
Soon after a stellar performance in the AFC Championship Game in January (27 rushes for 121 yards and a TD), marred only by his strange and notorious bumping of Ben Roethlisberger in what appeared to a sexual manner in the game's final moments, Mendenhall opened a Twitter account.
The idea, Mendenhall says in a court document, was to "be himself, to express his opinions, and [to] foster debate on controversial and non-controversial issues."
It might have been fun for a while, but Mendenhall was quickly mired in charmless micro-blog debates over Adrian Peterson's comparison of the NFL labor situation to "modern-day slavery" and the Islamic faith.
In April and May, Mendenhall indulged himself in a series of politically incorrect statements about women. Although Champion had a contractual right of "review and approval" of "all posts," the company ignored Mendenhall's misogyny.
But Champion didn't ignore Mendenhall's tweets about the spontaneous celebrations that broke out near the White House and at New York City's Ground Zero after Navy Seals killed Osama bin Laden in Pakistan.
"What kind of person celebrates death?" Mendenhall asked in one tweet. "It's amazing how people can HATE a man they never even heard speak. We've only heard one side."
In another, he wrote, "I just have a hard time believing a plane could take a skyscraper down demolition style."
Facing a firestorm of angry criticism, including condemnation from the Steelers and the Rooney family, Mendenhall tried to explain himself in a lengthy letter that he linked to his Twitter page. His comments, he claimed, "have gotten misconstrued."
He was, he continued, trying to "encourage anyone reading it to think." He most certainly did not mean "to stir up controversy," despite his statement as he opened his Twitter account that he wanted to "foster debate on controversial and non-controversial issues."
He was clearly succeeding in his goal of fostering what passes for debate on Twitter, but it quickly became obvious that he would be fostering debate without any further financial support from Champion. Executives at Hanesbrands Inc., the parent company of Champion, notified Mendenhall that the company was terminating its contract with the player. (These are the same people who were forced to fire Charlie Sheen -- remember those underwear ads with Michael Jordan? -- when he became a pariah.)
A lawyer for Champion told Mendenhall and his agents in a letter that his tweets on bin Laden and the 9/11 attacks brought Mendenhall "into public disrepute, contempt, scandal and ridicule." It was now impossible, the letter stated, for Mendenhall to "be an effective spokesperson for the Champion brand."
Mendenhall, of course, has now filed a lawsuit, claiming that the company wants to "muzzle" him and that it has deprived him of his right to free speech. His attorney, Steven Thompson of the Chicago firm Ungaretti & Harris, insists that the suit "is not about money, it's about freedom of expression."
A jury will decide whether Champion was "reasonable" in its decision to fire Mendenhall.
But perhaps more interesting than the jury's decision will be Champion's decision on its next celebrity endorsement contract. They've tried Sheen and Mendenhall. Who's next? LeBron James? John Daly? Milton Bradley? Plaxico Burress? Those guys might be available, but maybe it's time for Champion to consider a new marketing strategy.
Autographed Basebrawls: All in the Family
Larry Pogofsky's goal was to collect autographed baseballs from every member of the Hall of Fame. As crazy as it sounds, he might have done it.
With fortunes earned at the Chicago Board of Trade and as an investor in the White Sox with Jerry Reinsdorf in 1981, Pogofsky bid at auctions, attended old-timers games, and tracked the memorabilia market for nearly 30 years, gathering more than 200 signed balls, including ones autographed by Babe Ruth, Lou Gehrig, Joe DiMaggio, Roberto Clemente, Sandy Koufax and Mickey Mantle. But as he neared his objective, he died suddenly and unexpectedly in December 2010.
Since his death at age 64, what had been the joy of Pogofsky's life has become a family nightmare.
Pogofsky's widow, Lynda, says the baseballs and the rest of the collected MLB memorabilia belong to her. "It's very simple. All of it is mine until I die," she told ESPN.com.
Pogofsky's sons, Brad and Benjamin, each say the baseballs belong to them. Brad says they all belong to him. Benjamin says they all belong to him. According to Brad, their father told him his will would provide that the baseballs would go to Brad. According to Benjamin, their father told him his will would provide that the baseballs would go to Benjamin.
Unable to reach any agreement, the Pogofskys are now battling each other in three courthouses. Brad sued Benjamin for harassment. Benjamin, in another lawsuit, demanded and obtained an order of protection that prevents Brad from coming near him. When Brad removed a couple dozen baseballs from the family home, Benjamin and Lynda persuaded the police to charge Brad with residential burglary, a felony that could lead to seven years in a penitentiary. And they're all caught in a will contest in probate court that could become enormously expensive.
All three seem embarrassed about what's happened.
"It should never have become this complicated," Lynda said when asked about the thicket of litigation.
"It's a family matter, and it should be settled within the family and not in the courthouse," said Michael Botti, the attorney for Brad. In support of their wishes for a settlement, Brad and Botti have voluntarily dismissed the harassment lawsuit Brad filed against Benjamin.
Kurt Muller, the attorney for Benjamin, seems to agree. "No family likes to see its peculiarities and idiosyncrasies portrayed in the media," he told ESPN.com. But Benjamin and Muller refuse to withdraw their request that led to the protective order that bars Brad from coming anywhere near Benjamin.
And neither Benjamin nor Lynda seem willing to try to stop the burglary prosecution that could send Brad to the pen.
"That's in the hand of the prosecutor, and we can't do anything about it," Muller said. Lynda's lawyer, Marc Benjamin, refused to discuss it.
With court dates scheduled well into the fall, there is no end in sight. The family wealth allows the Pogofskys to hire and pay lawyers who will happily prolong the dispute.
Anyone who is around sports events knows that many fans, including some old enough to know better, will make fools of themselves to obtain an autograph. The Pogofskys are taking the autograph syndrome to an embarrassing new level of obsession.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
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