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Why DNA evidence doesn't sink Clemens

Aug 19, 2010, 4:00 PM EDT

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.

  1. Church of the Perpetually Outraged - Aug 19, 2010 at 4:19 PM

    And another thing to note (which may be implied) is that even if the syringe has Clemens DNA AND and traces of steroids, with no proper chain of custody there’s no way to prove that both pieces of evidence were there [attained?] at the same time. For example:
    1/1/00 – Clemens gets injection of Vitamins, McNamee keeps syringe
    1/1/04 – McNamee takes used syringe and injects it into personal stash of ‘roids, ipso facto, used syringe with Clemens DNA + roids

  2. David - Aug 19, 2010 at 4:34 PM

    McNamee = Lewinsky, but without the dignity or credibility of the latter.

  3. Largebill - Aug 19, 2010 at 4:41 PM

    Monica did not have a proper chain of custody form filled out so Bill got off despite DNA sample testing positive. However, in that case the jury pool was more tainted than the evidence.
    In all seriousness, I think Craig is right on this one. If the prosecution is going to get a conviction it will be on the basis of the testimony not due to DNA. Celebrity trials are a crap shoot as the one moron on the Blago jury showed us this week and as a group of idiots showed us in the OJ case. They can asked all sorts of questions of the potential jury members, but they can not compel them to be honest.

  4. beezo - Aug 19, 2010 at 6:03 PM

    Craig, do you think the DNA evidence will be considered inadmissible in court? Or will it be allowed and the defense will have to convince the jury that the evidence is not reliable? If I’m not mistaken, the Bonds DNA evidence was considered inadmissible because its source could not be accurately verified…same thing here?

  5. David - Aug 19, 2010 at 6:58 PM

    Additionally, even if you prove that McNamee injected steroids or HGH into Roger Clemens with those needles its not nearly enough for a conviction. You need to prove that Clemens KNEW the contents of the injections he received. If Clemens believed the injections he received were not steroids, he would not be guilty of perjury. Just as Bonds can defend himself with the assertion that he believed the cream and the clear to be flax seed oil, Clemens can defend himself with an assertion he believed the syringes contained lidocane.

  6. Craig Calcaterra - Aug 19, 2010 at 7:06 PM

    I have a hard time seeing how it would be admissible.

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