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Will there be sordidness in the Roger Clemens trial? Oh yeah, there will be

Jun 30, 2011, 8:25 AM EDT

Brian McNamee

I’ve been pretty clear about not being a big Roger Clemens fan. I’ve also been pretty clear in thinking that the case against him is going to be stronger than the case against Barry Bonds for the simple reason that, unlike in the Bonds case, the jury will hear from someone who claims to have direct knowledge of the situation that Roger Clemens did, in fact, take steroids.  That person is his former trainer, Brian McNamee.

What I haven’t said a lot about lately, but which I wrote about extensively three years ago when all of this was first bubbling to the surface, is that Brian McNamee has his own problems as a witness and will be subject to a pretty rigorous cross-examination. Cross-examination on the most fundamental and potentially damning basis on which any witness can be crossed: his credibility.

The facts are these: McNamee is an admitted liar.  He lied for years about Clemens steroid use, protecting his position as Clemens’ personal trainer and protecting his neck as an illicit drug distributor. In that process he famously wrote an op-ed piece in the New York Times in which he denied Clemens ever took steroids.  Prosecutors will have no choice but to deal with that from the get-go, establishing that, yes, he was once untruthful regarding the matters on which he will testify in this case, but now he is being honest. The defense, of course, gets to ask the best question any lawyer can ever ask any witness: “so, were you lying then or are you lying now?”

But there’s another matter which touches on McNamee’s credibility. It’s far more complicated and potentially explosive, however, and late last night it exploded into this case when Clements’ lawyers filed a motion on the subject: McNamee was once suspected of and questioned about drugging and raping a woman in a Florida hotel pool when he worked for the Yankees in 2001. No charges ever resulted from the incident. But the critical takeaway was that the police suspected — and noted in their reports — that they believed McNamee lied to them during questioning.

Clemens’ lawyers want that stuff admitted into evidence during Clemens’ trial. Prosecutors, of course, want no part of it in there. Clemens’ lawyers likely want to paint with a broad brush, touching on the credibility angles, but wouldn’t mind a bit if it all gave the jury the impression that McNamee is a rapist who somehow slithered free. Prosecutors would like it all avoided, because it “could become a ‘sideshow’ that would unfairly prejudice the jury against their leading witness.”

It strikes me that the incident has to come into evidence in at least some limited fashion due to that credibility angle. That Clemens’ lawyers should be able to establish that, when questioned by law enforcement in 2001, McNamee was believed to have lied, thus suggesting the possibility that, when questioned by law enforcement during the course of the Mitchell Report, he lied once again. How much latitude Clemens lawyers should get in bringing up the underlying facts of the investigation (i.e. the alleged rape) as opposed to bringing up the lying stuff is the line the judge will have to walk. And it won’t be an easy line.

So no, the Clemens trial will not be solely about illicit drugs, hotel room injections and abscesses on Clemens’ buttocks. There will be some ugliness in there too.

  1. drmonkeyarmy - Jun 30, 2011 at 8:34 AM

    McNamee’s credibility is already in question for events taking place around the time of the south Florida incident. One would think that the defense would try to show a continuing pattern of deceit rather than the possibility of 10 year old lies….to me that is grasping at straws, but I am biased. I hope Clemens goes to jail. I don’t care if he took steroids, but it pisses me off when people go in front of Congress and tell blatant lies.

    • cur68 - Jun 30, 2011 at 8:39 AM

      Hey ‘army; I got a drug question and it’s semi on topic here. You know the date-rape drug, rophenol? There’s a version of it we used to use for sedation in joint replacement patients. Causes a certain amount of amnesia and I’ve been trying to remember the name of it all week. You wouldn’t happen to know the name of it, would you?

      • cur68 - Jun 30, 2011 at 8:53 AM

        I just remembered it! Ketamine! I was sitting here, bloated on toast and coffee and muttering “Flecanide? nope, SVT drug. Procainamide? Nope. Same as flec. Ketamide? WTF is ‘ketamide’…wait…that’s close…” then it popped into my head. Whew. That’s been bugging me.

        Anyways, how easy/hard do you think it is to either make that crap or get ahold of it on the street? I’m interested because of McNamee’s possession of it might able to be traced. There is no way in HELL he was using it on Clemens so what was he doing with it?

      • drmonkeyarmy - Jun 30, 2011 at 9:25 AM

        Rohypnol is generically known as Flunitrazepam, which is a benzodiazepine in the same mold as Valium (Diazepam), Ativan (Lorazepam), and Xanax (Alprazolam)….probably most similar to Versed (Midazolam). Any of these drugs would work as a “date rape” drug when mixed with alcohol in a benzo naive person. It is no longer available for use in the United States and hasn’t been for quite some time. I do, however, believe that it is still used in some European countries, but I don’t know which ones. As far as manufacturing goes, unless said person is the Rogue Chemist I don’t see that as viable.
        Ketamine is a complete different class of drug but can also be used as an anesthetic…a dissociative anesthetic to be precise. It has a mechanism of action similar to that of PCP.

      • cur68 - Jun 30, 2011 at 10:38 AM

        Ahh. Thanks ‘army. I’m hazy on date-rape drugs and didn’t know that midaz was similar to rohypnol. We used to use midazolam a lot but have stopped now. Seems to cause long term neurological damage to growing preterm infants.

        So what in tarnation was McNamee using then? A blood or urine tox screen on the lady in question would have turned it up. Has to be a matter of record somewhere. If it was ketamine, then it would likely be traceable to a source I would think. The stuff’s heavily regulated (or damn well should be). One thing I do know, not just anyone has the wherewithal to be a Rogue Chemist. Such a person be noticeable, especially if they were a heavy supplier. Most of this stuff must be manufactured out of country and smuggled in, I bet.

        Well, that actually answers my question; smuggled in rather than locally produced. When you write up your Rogue Chemist story, base the guy somewhere nice and warm, with great beaches and lovely ladies of loose morals and a liberal attitude to nerds. A made for TV mini-series is your for the asking…

      • drmonkeyarmy - Jun 30, 2011 at 11:55 AM

        I believe Ketamine is a Class II controlled substance, so you are correct the sale and use would be highly regulated. Obviously I have absolutely no cause to stock it and can’t imagine other non-institutional pharmacies would. Benzo’s are a Class IV controlled substance and though regulated are not as tightly monitored as Class II’s. Furthermore, the illicit sale of Benzo’s in a significant problem.

    • garlicfriesandbaseball - Jun 30, 2011 at 2:10 PM

      Agreed. And wouldn’t it be nice if the time would come when we could truly and honestly believe everything our upstanding congressmen tell us? Not holding my breath.

  2. bsbiz - Jun 30, 2011 at 8:34 AM

    “There will be some ugliness in there too.”

    What, because abscesses on Clemens’ buttocks aren’t ugly enough?

  3. Chris Fiorentino - Jun 30, 2011 at 8:36 AM

    Seems like just another big waste of the taxpayer dollar here. But whatever…I guess the world will be a safer place with Clemens behind bars.

    • cur68 - Jun 30, 2011 at 8:46 AM

      Well, I always thought lying to your government when you’ve taken an oath not to is considered very bad. Didn’t you guys nearly knock 2 presidents out of office for that sort of thing? Anyhow, I think that’s more where your tax dollars are going. The real question is; are the witnesses against Clemens any more or less reliable than the ones against Bonds? I think we have a dead heat here.

      • Chris Fiorentino - Jun 30, 2011 at 8:52 AM

        cur, I agree with you, but in this case, I just think after the big waste of time the Bonds fiasco was, this is just stupid and self-serving for the federal prosecutors. But technically, the guy lied to Congress and deserves to be punished. I just wish they could do this type of thing quickly and behind closed doors instead of dragging it out for years. But that’s the legal system I guess.

      • garlicfriesandbaseball - Jun 30, 2011 at 2:13 PM

        The blue dress comes to mind.

  4. tinker61 - Jun 30, 2011 at 8:44 AM

    I wouldn’t believe McNamee if he was standing on a whole stack of Bibles. How many lies has he been caught in already?

    • paperlions - Jun 30, 2011 at 8:50 AM

      Yes, but most of those lies were for self protection….if there was ever a time he would tell the truth, it would be with the FBI holding you in custody and threatening to throw you in jail if they found out that anything you said was untrue. Apparently, nothing he said to them (including things associated with Clemens drug use) has been impugned by anything uncovered during their investigation. In other words, he lied when it protected him, and he (probably) told the truth when that protected him.

      …but whether he was lying or not is nearly irrelevant, Clemens so clearly lied during his disastrous performance in front of Congress that anything related to McNamee is almost tangential.

  5. largebill - Jun 30, 2011 at 8:58 AM

    The obvious action for prosecution is to beat them to the punch by addressing his credibility in opening statements. The old saying is when going after criminals your witnesses will never be members of your church choir, blah, blah, blah. In that vein some of the witnesses you’ll hear from during this trial have been less than completely truthful in the past. However, based on corroboration of facts from other sources . . . . . and he understands that his immunity is fully dependent on his truthfulness in this proceeding . . . . he has very compelling reasons to tell the truth, etc, etc. That won’t completely mitigate the defenses efforts to impeach the witness, but it should make the jury slightly less open to that line of attack.

  6. dirtyharry1971 - Jun 30, 2011 at 9:04 AM

    I have no doubts the judge wont allow any of Mcliar’s previous lies to law enforcement to be used in court cause so far the feds have made sure Mcliar has been given a free pass to do and say whatever he wants without having to be held accountable. Nice justice system!

    • paperlions - Jun 30, 2011 at 9:28 AM

      No they haven’t.

      They have protected his testimony, which they believe to be true. No one has brought any evidence to suggest anything he has said about Clemens or PEDs in baseball were untrue. In fact, except for Clemens, every single other person about which McNamee made claims has verified them.

      Is this the part where I thumb up my own post?

      • dirtyharry1971 - Jun 30, 2011 at 9:51 AM

        You should be able to cross examine him like any other witness but nooooooo the feds put all these restrictions on with this guy and thats BS anyway you look at it. And where is the big smoking gun? The 7 year old box under his bed? Please if anything should be not allowed in court it should be that box cause who knows what was done to it over all that time. Look you hate Clemens cause he A. beat your team repeatedly or B. Left your team after he was there thats fine. Just say i hate Roger Clemens and be up front about it

      • dirtyharry1971 - Jun 30, 2011 at 3:36 PM

        you really think i care how many knuckleheads give me a thumbs up or down? Really? Seriously? Also if you look back a few years you will see that McLiar also said that Clemens and Pettitte never used steroids, so was he lying then? is he lying now?

    • bobwsc - Jun 30, 2011 at 11:23 AM

      big smoking gun A: Pettitte ratting Clemens out
      big smoking gun B: Roger’s wife admitting to using HGH
      big smoking gun C: oh yea, Roger’s DNA on some syringes. If DNA has been used in cases where a guy rotted in jail for 30 years, only to be vindicated by said DNA, then a 7 year old dirty dope-needle should be just fine.

      • dirtyharry1971 - Jun 30, 2011 at 3:32 PM

        Lets see

        so called smoking gun A: Pettitte changed his story at least 3 times on this, how credible is he in court?
        so called smoking gun B: So his wife was interested in anti-aging meds, what woman isnt? doesnt prove anything Clemens did or didnt do, thats like saying his cousin smoked pot so he must too
        so called smoking gun C: This one has to be the worse, i cant believe anyone is this stupid but ever hear the word ‘tampering”? Think about it for a while and i bet even you might start to realized how easy it would be for someone to do

  7. tuftsb - Jun 30, 2011 at 10:37 AM

    You cannot lie to Congress. Only we can lie to Congress – Charlie Rangel

  8. garlicfriesandbaseball - Jun 30, 2011 at 2:15 PM

    What a friggin waste of time! The government has serious problems to solve and this isn’t one of them. Martha Stewart all over again……get over it!

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