Commentary

Clemens should worry about PED report

Originally Published: March 10, 2009
By Lester Munson | ESPN.com

Federal agents have discovered performance-enhancing drugs on paraphernalia that Brian McNamee claims he used to inject Roger Clemens, according to a New York Times report. The report comes as a federal grand jury in Washington, D.C., investigates whether Clemens lied to a Congressional committee when he denied using PEDs. McNamee, Clemens' former trainer, turned over a box of syringes, gauze pads and vials to federal authorities in January 2008, asserting that he had kept the materials since injecting Clemens in 2000 and 2001. Clemens claims the injections were vitamin B12 and the painkiller lidocaine. The discovery of PEDs on the paraphernalia raises legal questions about the evidence and its importance. Here are some of the questions and their answers:

How important is the evidence that PEDs were found on the McNamee stash of drug paraphernalia?

Earlier reports indicated that Clemens' DNA had been discovered on at least one of the syringes, so the discovery of PEDs on the paraphernalia is another step in what likely will be a difficult process in the government's attempt to prove that McNamee used them on the pitcher. Other steps in the process include establishing that McNamee kept the materials intact between 2001 and 2008, and that they can be connected to Clemens. The Times report didn't indicate whether the PEDs were found on the same syringe that contained Clemens' DNA, but if federal agents can connect the PEDs to that syringe, it would be strong evidence that Clemens lied when he clashed with McNamee in their testimony before the House Committee on Government Reform. Although the process will be difficult, it can be done. With Clemens and McNamee contradicting each other, the evidence of PEDs on the paraphernalia, if authenticated, could become conclusive.

[+] EnlargeBrian McNamee, Roger Clemens
AP Photo/Pablo Martinez MonsivaisDoesn't prove anything yet, but evidence presented by Brian McNamee, left, isn't good news for Roger Clemens.

Who will decide whether the evidence is valid? When will the decision be made?

The Clemens legal team insists that the McNamee paraphernalia is bogus. They accuse him of fabricating the materials. There will be no public decision on the validity of the McNamee evidence unless Clemens is indicted. If he is indicted, then his attorney, Rusty Hardin of Houston, must decide whether to challenge the evidence before the trial or wait for a ruling during the trial. It will be an important decision. Hardin could ask a judge to suppress the evidence as unreliable before the trial. But Hardin, a highly successful jury trial specialist, is more likely to try to convince the jury that the evidence is fraudulent and urge them to ignore it as they consider whether Clemens lied.

Will this evidence of PEDs help the grand jury in its deliberations about an indictment?

Yes. In their presentation to the grand jury, the prosecutors are not held to the same standard that applies in a trial. They enjoy considerable latitude in the evidence they can show to the grand jury as the jurors decide whether to make a charge. The authenticity and validity of the PED evidence will not face the same rigorous tests it would face in a jury trial. Although it could come back to haunt them, the prosecutors could legally tell the grand jurors about the evidence of PEDs without even showing them the process that led to its development. They could present the evidence, for example, with a few sentences of description and tell the grand jury to consider it as valid in their deliberations on Clemens. That isn't the best practice, but it would move the investigation along toward a conclusion.

Will the federal prosecutors in Washington face the same problems with evidence in a perjury case against Clemens that the federal prosecutors in San Francisco are facing in the Barry Bonds perjury prosecution?

No. The key difference is that McNamee is ready and willing to testify that he helped Clemens with PEDs. Bonds' trainer, Greg Anderson, refuses to say a single word about Bonds and PEDs. If the Clemens prosecutors can establish the authenticity of McNamee's paraphernalia and persuade a judge to allow it in as evidence for the jury, they will be very close to a conviction. The Bonds prosecutors were forced to craft imaginative and creative ways to present their evidence as the result of Anderson's refusal to cooperate. Their efforts did not persuade federal judge Susan Illston in San Francisco, and the prosecutors have now appealed. With McNamee eager to testify against Clemens if Clemens is indicted, the prosecutors' job will be far easier.

Should Clemens be worried about McNamee's box of paraphernalia?

Yes. The syringes, gauze pads and vials will be dramatic evidence if they are validated and allowed before the jury. The prosecutors will present the syringes with a flourish. No one wants to see a syringe, but everyone in the courtroom will be looking at this evidence. The syringes will be in plastic bags and handed to the jurors for their close inspection. As the jurors look them over and pass the syringes along, the courtroom will turn silent with jurors looking at the syringe and then at Clemens. It will be a bad moment for Clemens and his lawyers. Hardin can be remarkably persuasive, but he will face a challenge trying to explain away a syringe with PED residue and Clemens' DNA.

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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