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Not surprisingly, the credibility of the now-famous Mitchell Report that publicly identified 85 baseball players as having used illegal drugs is about to be tested not just in the court of public opinion, but in a real courtroom, as well as in Congress. Roger Clemens and Brian McNamee and their lawyers are already at each others’ litigation throats, Clemens drawing first blood by filing a lawsuit attacking the credibility of McNamee, the “star witness” in the Mitchell Report. The day before he filed his lawsuit, Clemens went public on 60 Minutes to defend himself, presumably to gauge the reaction of an increasingly skeptical public. The House has scheduled public hearings next month at which Clemens, McNamee and other witnesses have been asked to testify, which will inevitably accentuate the harm to players named in the report who “may” be innocent. Public identification of people suspected of wrongdoing is a dangerous practice. U.S. history is replete with public accusations of individuals, often falsely, for being witches, communists, child molesters and aliens. They are stigmatized, censured and punished, often without a fair opportunity to rebut the charge. The “blacklist” of the 85 baseball players identified in the Mitchell Report occupies a new and unusual chapter in the public “outing” of alleged wrongdoers. Put simply, was it fair and responsible to publicly identify the players accused of illegal drug use? To be sure, the accuser is not a religious fanatic; a demagogic, McCarthy-like legislator; a child; or a right-wing militia. George Mitchell is a public figure with an unimpeachable reputation for competence, integrity and independence. He was a federal prosecutor, a federal judge and Senate majority leader. Still, the individual players who � unlike baseball’s commissioner, Bud Selig � had no say in yielding autonomy to Mitchell, had much more to lose than Selig. For if Mitchell were to determine that sufficient evidence existed to allege the use of drugs, they were simply unable to stop him from publicizing their names. Selig chose to give Mitchell a blank check in how he reported his findings; the players didn’t. True, Mitchell did not name names recklessly or gratuitously. He offered each accused player an opportunity to give his side of the story. Reportedly, one player did talk Mitchell out of naming him. But was that enough protection for a player who was to be named? Suppose the player was indeed innocent, but the cooperating witnesses � “turnarounds” working off federal jail terms or seeking immunity � persuaded Mitchell that there was a sufficient evidence to make an accusation. The player’s denial would appear, but, of course, beside a Mitchell accusation. Also, undoubtedly, if a player did agree to be interviewed, Mitchell would ask him � as would any intelligent investigator � what he knew about other players. Surely Yankees pitcher Andy Pettitte, who, after the report, admitted to twice using human growth hormone, would have been asked that question. And, almost as surely, a truthful answer would have pointed to his good friend, teammate and fitness mentor, Clemens. Perhaps players could have tried to condition an interview on “I’ll talk about me, no one else � I ain’t a rat.” But even if Mitchell agreed, in all likelihood his reporting of that event would have raised stronger suspicions and actually reinforced his identification of those individuals about whom a player refused to talk. Even a player like Derek Jeter, baseball’s paradigm for good sportsmanship, about whom no one has ever raised doping questions, might have been placed in the position of incriminating, if only through hearsay, other players and teammates, friends or not. Indeed, it’s possible that several of the named players, innocent or with mitigating circumstances, may have faced a similar predicament and thus chose not to be interviewed. The players’ predicament The named players clearly face a predicament in proving their innocence. How do they repair their stained reputations? As a “public figure,” a named player could not realistically sue Mitchell, who under the law of defamation unquestionably proceeded in good faith and without malice. This is so, especially since federal prosecutors advised him that the information from the cooperating witnesses was consistent with what they previously told the prosecutors. At least Barry Bonds, criminally indicted and facing trial in a public courtroom in San Francisco, will have a chance to publicly clear his name. There is little question that, if Mitchell had not named names and simply made conclusions about widespread drug use and the need for strong systemic reforms, his report would have appeared less credible and been given less attention. It appears that Major League Baseball needed to have a George Mitchell not only conduct a vigorous investigation but also identify alleged wrongdoers. However, given the protocol he chose, there may be innocent victims whose protestations will be heard but, in most cases, not believed. Joel Cohen is a partner at Stroock & Stroock & Lavan in New York and an adjunct professor of professional responsibility at Fordham University School of Law. Bennett L. Gershman is a professor at Pace Law School and the author of Prosecutorial Misconduct (West 1999).

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