Comment and response

This morning I wrote a post that, among other things, lauded the legal counsel Sammy Sosa appears to have been given in advance of his Congressional testimony in 2005. I said this:

[Sosa] said “To be clear, I have never taken illegal performance-enhancing drugs.” He said “I have never injected myself or had anyone inject me with anything.” He said “I have not broken the laws of the United States or the laws of the Dominican Republic. I have been tested as recently as 2004, and I am clean.” All of those statements allow for the possibility that he used substances that were legal in the Dominican Republic that would have been illegal to use in the United States.

I’ve said in the past that, contrary to the naysayings of others, Sosa was well-advised to have used an interpreter during his Congressional testimony. In light of yesterday’s news, this is even more true, because it now appears that he needed to thread a very tiny needle to keep himself out of legal jeopardy. From what I can see, he threaded it brilliantly, and as a fellow shyster, my hat is off to whoever advised Sammy back in 2005 for pulling off what I can only call a work of legal art.

In response, the always able, always game Jack Marshall offered this:

A point and a question, Craig.

The point is that Sosa’s statement at the hearing was so obviously threading a rhetorical and legal needle that it was one of the main reasons people (like me) became convinced that Sosa was a user and a liar. That’s legal art only if you are the kind of analyst who thinks “it depends what the meaning of ‘is’ is” is a slam-dunk rebuttal. Sure, it avoids perjury—-so does taking the 5th on the stand. But they both make you look guilty as hell. (Sosa’s statement is also deceit—-making a statement that is literally true but designed to deceive casual listeners into thinking it means something very different from what it really does mean. This is, as I’m sure you know, specifically designated as ethical misconduct for a lawyer in Rule 8.4 of the Rules of Professional Conduct if a lawyer does it personally. It is a form of dishonesty.)

Now the question: has anyone ever explained WHY a steroid user would take that 2003 test? To find out if the test works? If that was the point, then the union was actively attempting to assist players in cheating. Maybe a player was unsure if he was using steroids? No, even Manny isn’t THAT stupid. To make sure one’s name was on a list that was sure to end up in the hands of the Feds if the union didn’t destroy it seconds after it was compiled? The fact that there were “only” 104 players who volunteered for this only indicates to me that there were 104 morons using steroids, and the non-morons had the sense to take a pass.

I said in the comments that I’d offer a response, and for purposes of clarity (and not mucking up an already longish comments thread) I’ll offer it here. While it comes as a direct response to Jack, anyone and everyone is encouraged to chime in, of course.

I guess I’d start by once again saying that I am not particularly shocked that Sosa, apparently, tested positive in 2003. Moreover, while I can’t say I levelled any heavy judgement on Sosa at the time of his testimony, neither was I of the view that he was being particularly deceptive. McGwire’s words made it pretty obvious that he had used, but it was only a few weeks later when Rafael Palmiero was busted that I considered that Sosa would have the chutzpah to lie to Congress. I wasn’t blogging then, so I didn’t make a point of parsing his words. I think the most I did was make a mental note to wonder what would happen if he, like Palmiero, came up with a positive test. That happened yesterday, and it represents the first time I looked back at his statements. As I said in the earlier post, those statements all allow for the possibility that he (a) took steroids in the D.R. and (b) was still telling the truth. It wasn’t a moral approval of the tack he took before Congress. It was merely an appreciation that, technically speaking, that tack may have saved Sosa from committing perjury. I called it “art,” which is what I assume set you off.

But to answer your charge, I don’t find the “art” in Sosa’s statements in their success at providing “a slam-dunk rebuttal.” They don’t, as anyone who parses language for a living like we do readilly understands. We now know, with yesterday’s news, that Sosa was being verry careful in front of Congress, and someone walking that tightrope hasn’t really rebutted anything, let alone in slam dunk fashion. But like I said, his words did, I feel, prevent him from committing perjury, and keeping him clear of a perjury rap and/or drug rap and out of dutch with Baseball was what his lawyer was hired to do in that situation. Let his P.R. people deal with whether or not we think Sosa is a bad person or a liar in the general sense. The lawyer did his job, however much we may not like his job and all it entails. You mention the Fifth Amendment — I submit that if Sosa’s PED use was limited to legal drug use in the D.R., any assertion of the Fifth Amendment would itself be improper, but maybe that’s another conversation.

As for the ethical argument you do raise: we could argue whether “making a statement that is literally true but designed to deceive casual listeners into thinking it means something very different from what it really does mean” is the actual definition of “deceit” for purposes of Rule 8.4, but I don’t think that’s necessary. First off, as you note, that rule applies to lawyers, not lay persons, so it’s meaningless in this context. Second, Sosa was testifying before Congress, under oath. Congress has counsel and most congressmen are lawyers themselves, all of whom had carte blanche to challenge Sosa about anything he said, and the ability to back it up with criminal sanctions if they felt he was being untruthful. That’s not “the casual listener” as far as I’m concerned. I’m going to assume that, like you, several members of Congress and their counsel heard some questionable qualifying from Sosa that day. The fact that no one pressed him on it suggests that no one felt like they were being deceived by anything.

The question of why a player would take the test in 2003 was answered in the other thread, but to save people from clicking back, the 2003 survey testing was “voluntary” only to the extent that the Players’ Union agreed to the program and its consequences. Under it, every player was tested druing spring training — twice, actually — and then an additional control group of 240 players was tested later in the season. As many players admitted at the time, there was a P.R. calculus to this in that, if the percentage of positives were low, the people going around and claiming that large percentages of players were using could be shouted down, and if the numbers were high and thus mandatory testing kicked in, hey, at least there was some rational basis for it beyond media hysteria. However cynical a calculation it was in the first instance, the fact that players knew the tests would come in March and more than 5% still tested positive indicates just how deluded some of these guys were.

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  1. ChrisKoz said...

    As far as the “making a statement that is literally true but designed to deceive casual listeners into thinking it means something very different from what it really does mean” statement goes. This is 1L stuff here.

    Take Bronston v. United States: “It may well be that petitioner’s answers were not guileless but were shrewdly calculated
    to evade. Nevertheless, we are constrained to agree with Judge Lumbard, who dissented from
    the judgment of the Court of Appeals, that any special problems arising from the literally true but unresponsive answer are to be remedied through the “questioner’s acuity” and not by a federal perjury prosecution. . . .”

    So, I completely agree Craig, it’s up to counsel for the subcommittee and the subcommittee members themselves to call him out on his bad wording. The lawyer did his job 100%.

  2. Craig Calcaterra said...

    Um, yeah, what ChrisKoz said. I was totally thinking of the court’s holding in Bronston . . .which I remember. Um, from law school.

    OK, in all seriousness, this demonstrates the value of law school, kids. I have no memory of Bronston, but by gum, the concept, either directly from that case or from the general mode and structure of reasoning that law school imprinted upon my little brain, I just sort of knew the principle of Bronston re: whose duty it is to get to the truth in such instances.

    Law school: it’s not just for prventing poverty among liberal arts majors!

  3. Rob² said...

    Don’t forget to degree to which these congressional hearings are a dog-and-pony show.  The last thing the congressmen want in that instance is grilling any of those ballplayers to the extent that they may actually reveal some illegal activity under oath.

    As long as they heard Sosa say something that would sail with the public at-large, they were likely relieved that they didn’t have the mess that was the Clemens/McNamee hearing on their hands.

    As for the testing, I seem to recall reports that several (if not many) players were refusing the tests in an effort to trigger the threshold, given that a refusal to participate was considered a positive test result.  I wonder if any of the names on the list are there for that reason.

  4. Jack Marshall said...

    Thanks for the careful and considered response, Craig. I do think it is within a lawyer’s role to do more than just give legal advice—-if you keep a client from perjury but he ends up injuring his reputation and future earning power as a result, then your advice may have been incomplete, or even, on balance, wrong. [ Rule 2.1 Advisor: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” ] All in all,however, I agree that Sosa, like McGwire and Palmeiro, was in a tough fix, and his lawyer’s solution was as good as he was going to get. Raffy denied, MM evaded, Sammy parsed. And, in the end, it didn’t make a lot of difference: they’re all essentially in the same boat now.

  5. John said...

    Rule 2.1, Comment 4: “Where consultation with a professional in another field is itself something a competent lawyer would recommend, that lawyer should make such a recommendation.”

    Comment 5: “A lawyer ordinarily has no duty to initiate investigation of a client’s affairs, or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client’s interest.”

    In other words, once again Craig’s instincts are impeccable.

    The point is that Raffy, Palmeiro, and Sosa might be in the same boat, but only Palmeiro was ever in any danger of being indicted for perjury, as far as I can tell.

    It’s a secondary concern as to public relations.

  6. michael standish said...

    Neyer has this today:

    “I’m not real thrilled with Sosa for cheating—or for lying to Congress while under oath—”

  7. The Common Man said...

    Well, that kind of depends on your definition of a “good lawyer” (oxymoron, Craig?) doesn’t it, Jack?  Your requirements of representing Mr. Sosa responsibly seem to be in competition with John’s.  I’m speaking as a layman here, but it seems that a lawyer must balance those requirements in deciding what is best for his or her client.  And Sosa’s lawyer (we presume) gave his client the advice that would keep him on the right side of the law, and allow him to play more seasons in the majors(his short-term earning power was not harmed).

    And frankly, Jack, I think it’s flatly wrong to suggest that “a player who unambiguously, unequivocally never used PEDs of any kind wouldn’t need a lawyer, a translator, or a professionally crafted statement.”  If Congress called me to testify about something, regardless of whether I had done something wrong, I would consult a lawyer first.  How would I, a non-lawyer, know what kinds of questions they would ask, and what my options are for answering those questions.  What if they had asked Sammy specifically about other players he might have seen use?  What if they had asked him about his time in the Dominican Republic?  What are his obligations and options in answering those questions?  I don’t expect Sammy Sosa to inherently know that, and neither should you.  That’s why we have legal representatives in the first place.

  8. Jack Marshall said...

    Anyone who feels the need to consult a lawyer in such a situation should do so, of course. It doesn’t have to be a lawyer—-it could be anyone with good judgment. I don’t see the hypothetical questions you pose as legally problematical, given my stated precondition that the individual used no drugs, period. Congressional hearings should be designed to get at the truth (I recognize that they usually have less noble purposes, like PR) , and lawyers, translators and careful crafted statements impede that objective.

  9. Jack Marshall said...

    John, I’m not at all sure what those comments to 2.1 have to do with the price of beans. My point is that a good lawyer has to pay attention to both the threat of perjury and the harm to his client’s career and reputation both. The Sosa statement, carefully crafted though it was, served to increase public suspicions. A player who unambiguously, unequivocally never used PEDs of any kind wouldn’t need a lawyer, a translator, or a professionally crafted statement. I don’t question Craig’s assessment that the lawyer did a good job given what he had to work with;  I’m saying that when the public can see the lawyer sweating, its a good bet that there’s a fire somewhere.

  10. JL said...

    Regarding the over 5% and how “deluded” they were, why wouldn’t a player keep using and try to beat the test with a masking agent?  No punishment for testing positive and it was suppose to be anonymous (i remember this was a huge deal back then which makes the results coming out now surprising) so it was basically a free run to see how you would try to beat the test if/when testing became regular.  This is assuming that the players that tested positive would be alerted to that fact, which I’m not sure was the case.  If they were aware if they tested positive then ignore this comment.

  11. Jason said...

    “A player who unambiguously, unequivocally never used PEDs of any kind wouldn’t need a lawyer, a translator, or a professionally crafted statement.”

    Horseshit.  Congress was leading a witchhunt.  ANYONE called to testify in front of them should have hired a lawyer.

  12. Craig Calcaterra said...

    JL—a couple of thoughts:

    1) I have no clue if they knew at the time if they tested positive.

    2) I may be grafting my risk tolerance (low) onto the players—and of course, I have argued that they had a right to rely on confidentiality—but I’m a pessimist when it comes to this kind of thing. Information wants to be free, and personally I don’t think I would have risked it.  And before anyone says anything, this doesn’t change what I’ve said about the players being screwed by having their names released.  I don’t for a minute want the rest of the world to adopt my level of risk aversion, because it would become a boring place indeed.

    3) Wouldn’t a better strategy be for everyone to try to go clean for that one spring so as to have the numbers be under 5%, no mandatory testing be adopted, and then everyone could resume to ‘roiding like it was 1999?  Hard to coordinate, I’m sure, but masking agents seem like a pretty uncertain thing in their own right.

  13. Jack Marshall said...

    If Congress was holding a “witch hunt,” how odd that none of the “witches” it exposed to light (Palmeiro, McGwire) were punished by Congress in any way. See, Jason, there never were any witches, so the hunt for them was per se unjust and foolish. But there were and are cheaters and PED-users in baseball. Whatever the hearing was, “witch hunt” isn’t a fair or accurate description…in fact, it’s a horseshit description.

  14. JL said...

    Good points Craig, but despite some of Canseco’s claims that paint the roid era as a big syringe party in the bathrooms, I’m sure most players didn’t talk to each other about it but get where you are coming from.  I also assume that a great number of players did think your way and did stop since I’m pretty convinced that more than 5 – 10% of players were using in the early part of the decade.  And the uncertainty of masking agents is exactly why a test run would be hugely valuable, especially if it was successful (still quite valuable if it wasn’t though).

  15. Jason said...

    You know what, you’re right.  Witch hunt was an inaccurate description.

    But this:

    “A player who unambiguously, unequivocally never used PEDs of any kind wouldn’t need a lawyer, a translator, or a professionally crafted statement.”

    Is still horseshit.

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