Commentary

Latest move in Clemens-McNamee dispute could lead to criminal charge

Originally Published: February 7, 2008
By Lester Munson | ESPN.com

In the effort to prove his veracity, Brian McNamee reportedly has delivered syringes, gauze pads, and drug vials to federal agents. McNamee, Roger Clemens' former personal trainer, and his lawyers assert their evidence will prove that he injected Clemens with performance-enhancing drugs and that McNamee has been truthful in his statements about Clemens. McNamee's actions raise questions about the quality of his evidence, the ways in which it might be used against Clemens and the risks resulting from McNamee's assertions -- and Clemens's vehement denials. Here are some of the questions and their answers:

What is the possible value of McNamee's evidence? How important is it?

If the bag of syringes, vials and gauze pads passes the various tests used to determine authenticity of blood and DNA evidence, McNamee's material is enormously important. The word that lawyers and judges use for such powerful evidence is "dispositive." It answers all the questions. It's all over. Case closed. McNamee wins, and Clemens loses. But the testing process on McNamee's evidence will be long and intricate. The material is very old. Any blood and DNA could have been damaged during the years McNamee held it. McNamee must persuade federal authorities that he kept the materials in a safe and secure place, it was not tainted and he can account for its whereabouts since 2001. He is a former police officer and knows a bit about procedures used to hold evidence, so it is well within the range of possibilities that the evidence will pass the tests and McNamee will convince the authorities the material is what he says it is.

Clemens says McNamee's stuff is "manufactured." What if McNamee's stuff fails the legal tests and turns out to be bogus?

If McNamee's material is phony, he is going to jail. He and his attorneys have given the material to Jeff Novitsky, the IRS agent leading the BALCO investigation. They have told Novitsky and his team that it is the real thing. If federal agents discover something different, they will be unforgiving. It is the kind of move federal agents take personally; federal agents expect people to respond truthfully in their investigations. They view bogus evidence and tampering with evidence as serious crimes. If McNamee manufactured the material and is caught, he will have nowhere to turn. He advertised it to the federal agents as his evidence. He delivered it to them. If there is something wrong with it, he will be stuck for an answer and should prepare for a stay in a minimum-security prison.

McNamee has two lawyers representing him. Wouldn't they be sure about the authenticity of any evidence before they submit it and claim that it is the real thing?

You would assume that McNamee and his lawyers made sure the materials are the real thing. That what should happen, and it may be the way it did happen. But the presence of attorneys Earl Ward and Richard Emery guarantees nothing. Both are capable lawyers with splendid reputations. However, even with good lawyers and thorough preparation, things can go wrong. Martha Stewart, for example, answered questions from the FBI with the help of brilliant, expensive lawyers. But her answers, given with her lawyers sitting with her, resulted in criminal charges, a conviction before a jury and jail time.

Clemens and McNamee are playing a remarkably risky game. How will it end?

It is difficult to see how their dispute can end without criminal charges against one or the other. In a five-hour deposition before the House Oversight and Government Reform Committee on Tuesday, Clemens apparently made specific denials under oath. McNamee waited until after Clemens' deposition to disclose for the first time the evidence he has kept since 2001. So Clemens no longer has any room for explanation. If McNamee has been truthful and his evidence works, Clemens will face charges of perjury or contempt of Congress. With Clemens' sworn testimony in the deposition and McNamee's evidence in front of it, the Committee will not have to address many of the issues it faced upon discovering that Rafael Palmeiro had lied in his denial of steroid use.

Clemens has been aggressive and vehement in refuting allegations that he used steroids. Is that a mistake?

Clemens's attack on the Mitchell report has been relentless and public. He appears to have irritated his friend, Andy Pettitte, and he has certainly sparked a vigorous response from McNamee's attorneys. If anything, Clemens has taken his denials to a new level, hiring Lanny Breuer, a Washington lawyer who defended President Bill Clinton in his impeachment battles on Capitol Hill. In a Clintonesque counterattack, Breuer instantly labeled McNamee as "troubled" and "obsessed" and asked whether McNamee was in "his right mind." Breuer should feel at home representing Clemens who, like Clinton, has made vehement denials and now faces a bag of old, stained evidence. For Clinton, it was a stained blue dress. For Clemens, it's a bag of vials, syringes, and gauze pads. And Breuer now has prepped both Clinton and Clemens to face questions on Capitol Hill. In their efforts to sell their story, Breuer and Clemens are making personal calls to the offices of Committee members in advance of Wednesday's hearing. It's a high-risk strategy. If McNamee's material is the real thing, Clemens is going to wonder why he didn't quietly respond to the invitations from George Mitchell to answer a few questions and try to put things to rest.

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.