Aug 19, 2010, 4:00 PM EST
In response to my post regarding the problems the prosecution may have convicting Clemens, reader Anthony E. emailed me and basically asked why does anyone care about McNamee’s credibility if the feds have DNA evidence related to Clemens and PEDs (which they do).
Good question! And, as I noted over a year ago, it actually renders the McNamee credibility thing more problematic for prosecutors, not less.
You’ll recall that the blood and DNA evidence came from drug paraphernalia. You’ll also recall that the drug paraphernalia came from . . . Brian McNamee. Who had kept it. In his house. For years. This is a bit of a problem.
Sure, it would be better for Clemens if PEDs and his blood weren’t found on those syringes, but you don’t have to be a lawyer to be familiar with the concept of chain of custody. As in, what happened to those syringes in between the time McNamee allegedly injected Clemens and the time — years later — he turned them over to federal investigators.
Clemens’ defense lawyers will be able to attack the reliability of this evidence on the basis
that it wasn’t preserved properly and was always at risk of
contamination. They’ll be able to establish that Brian McNamee had access to PEDs. They’ll be able to establish that Brian McNamee had
access to Clemens blood via the vitamin shots or whatever Clemens says
McNamee gave him. They’ll be able to establish that Brian
McNamee’s apartment is no lab and, if I had to guess, probably looks
like the kind of place in which you used to wake up still drunk and
covered in beer cans and pizza boxes when you were in college. Most importantly, they’ll be able — as I said earlier today — that Brian McNamee is a demonstrated liar, thereby discounting any explanation he has for what happened to this evidence over the years. As he must for it to be admissible.
In other words, any presumption that the syringe evidence is pure and
true would be pretty hard to take. This is especially true in a world
where half of the potential jurors watch CSI three times a week and thus
have elevated expectations as to the quality of forensic evidence.
Again: this doesn’t mean that Clemens is going to skate. But it does mean that the presence of DNA evidence may not be nearly as damning in this case as it is in other criminal prosecutions.
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