Potential New Photos May Damage Clemens' Credibility

Washington, D.C., Feb 23, 2008— -- Lawyers for Roger Clemens say they have been alerted there may be a picture depicting their client at a party which he swore under oath in a congressional deposition that he did not attend. If true, the picture could put Clemens in legal jeopardy.

In his sworn deposition, Clemens adamantly denied attending the 1998 party held at the home Clemens' then-teammate, Jose Canseco. He was asked if he had been at Canseco's house at any time around the June 9 party and he replied "no."

But Friday evening, Rusty Hardin, a lawyer for Clemens, released a statement saying he had been contacted earlier in the month by a man who said he had pictures of Clemens at the party. According to Hardin, the man told him that one picture shows Clemens in the pool with the man's then-11-year-old son. Hardin said the man said he'd call back but never did.

Richard Emery, a lawyer for Brian McNamee, Clemens' former trainer who has said that he injected Clemens with performance enhancing drugs, said that he, too, learned about the existence of the photos.

In an interview with ABC, Emery said he told the federal prosecutors and Congressional investigators about the existence of the photos last week. Emery was told one picture was of the boy in a pool with Clemens, and the other was of the boy and Jose Canseco.

Contacted by ABC News, the man said to own the photographs, who wished to remain anonymous, said he couldn't comment because he was under subpoena from the federal government. Congressional sources tell ABC News that such a supboena did not come from Congress.

Said Hardin, "It is impossible for us to comment on the photograph itself because we haven't seen it."

Clemens' initial denial on attending the party had been an important part of his lawyers' attempts to undermine the accuracy of the Mitchell report, the explosive findings of an investigation led by former Sen. George Mitchell that accused Clemens of taking steroids. The Mitchell report claimed that Clemens was present at the party.

Although a small detail in the Mitchell report, the Clemens team initially seized on the fact that Mitchell had gotten the fact wrong in an effort to impugn the senator's other, more harmful findings.

During Clemens' closed door deposition, another one of his lawyers, Lanny Breuer, said, "We were able to establish and will be able to establish categorically, without question, that our client wasn't there."

The lawyers gave the committee receipts from a golf outing that day and also provided an affidavit from Canseco saying that the slugger was disappointed that Clemens had not attended his party.

But after the deposition, the Clemens' team was contacted by the father. The Clemens camp then changed its story.

At his nationally televised hearing, Clemens acknowledged that he may have stopped by the party to drop off a family member. He testified, "Could I have gone by the house later that afternoon and dropped off my wife or her brother-in-law, the people that golfed with me? Sure, I could have."

McNamee, Clemens' former trainer, who has sworn under oath that he injected Clemens with steroids, has suggested at times that Clemens may have gotten steroids from other people present that day at the party.

Denying those claims at his hearing, Clemens said, "I know one thing: I wasn't there huddled up with somebody trying to do a drug deal. That I know for sure."

McNamee's lawyer, Richard Emery, said, "I haven't seen the photos but I believe [they] exist. I draw the obvious conclusion. But it only corroborates totally believable testimony from Brian."

If photos exist and indeed depict Clemens at the party, legal experts will debate whether federal prosecutors could claim that Clemens lied about the party, pointing to the fact that a picture in a pool is not indicative of dropping off a family member.

With the starkly different stories between Clemens and McNamee, much of the debate has centered on the credibility of the two men.

UCLA Law Professor Laurie Levinson said the half-sentence Clemens uttered at the hearing in which he acknowledged that he might have been at the party might work in the pitcher's favor.

"He could come back and say there was some confusion," she said, "something like, 'I thought they were asking me if I was there doing drugs.' Legally, it comes down to whether the prior statement was actually false, or was just incomplete. It goes to intent."

Congress is still considering whether to refer the case to the Department of Justice for further investigation. IRS Special Agent Jeff Novitzky, the lead investigator into a prior federal investigation into steroid use that resulted in several indictments of professional athletes, sat in the second row of Clemens' congressional hearing.