11/21/24
February 03, 2009
Clemen's DNA Found on the Syringes Submitted by McNamee: But, Clemens' lawyer, Rusty Hardin, told the newspaper on Monday that the DNA tests "won't matter at all. It will still be evidence fabricated by McNamee. I would be dumbfounded if any responsible person ever found this to be reliable or credible evidence in any way."
It's weird that this report comes out with only half the story. If the lab knows it found Clemens' blood, it should also know whether or not the syringes contained performance-enhancing drugs.
Clemens' lawyer calls this manufactured evidence. But can anyone think of an innocent reason that syringes containing Clemens' blood would be lying around available to McNamee?
posted by rcade at 09:47 AM on February 03, 2009
this is just a bunch of junk that was put together in a dark, dusty basement years ago by McNamee
If McNamee did indeed put the evidence together "years ago" as Clemens' attorney claims, that might be the most damning evidence against Clemens. Why would McNamee need to put it together a long time ago? Just in case baseball in the future decided to do a study on steroids use, and Clemens might be implicated?
posted by graymatters at 11:00 AM on February 03, 2009
If the lab knows it found Clemens' blood, it should also know whether or not the syringes contained performance-enhancing drugs.
Somewhere I read that more test were being administered to find if steroids were present.
I would also think they might be able to tell if what they find would be easily put together, or would be difficult to fake. McNamee doesn't come across as the smartest guy. The whole mess is like Dumb and Dumber 3 with Hardin making a guest appearance.
posted by justgary at 11:44 AM on February 03, 2009
I think Clemens is guilty. But there still seem to be chain of custody issues with the evidence.
Maybe there's an exception in this case? Any real defense attorneys want to chime in?
posted by cjets at 12:02 PM on February 03, 2009
cjets, you accomplished in four links what it took my evidence professor a month to go over. Want to write an appellate advocacy brief for me? There are all kind of problems with these needles as evidence (too bad for Roger that rules of criminal procedure don't apply to public opinion.) Hardin is doing exactly what he should be doing in dismissing this evidence as useless. Even if he, Roger, you, me, and my Uncle Tony know that these are actually needles used to inject Clemens with 'roids, he earns his paycheck if he can convince a few jurors that there is a possibility that the blood was planted on them. I think he'll point to exactly what you did to raise that doubt, and rightly so. The fact that McNamee has so much to gain in terms of preserving his reputation makes it very easy to question his motives in supplying this evidence. It's not like police raided his house and these needles were in the medicine cabinet; he submitted them as a big "FU" when Clemens and his attorney started questioning his credibility. It doesn't matter if they find the DNA of the Lindbergh baby and Jimmy Hoffa on them, they're as useless as Hardin says they are.
posted by tahoemoj at 12:25 PM on February 03, 2009
Even if he, Roger, you, me, and my Uncle Tony know that these are actually needles used to inject Clemens with 'roids, he earns his paycheck if he can convince a few jurors that there is a possibility that the blood was planted on them.
I would even take it a step further and say that the syringes are inadmissible in a trial because of the chain of custody rules have not been followed.
But I don't know, there may be an exception to the chain of custody rules that allows this evidence to be admitted?
posted by cjets at 12:38 PM on February 03, 2009
Hardin is doing exactly what he should be doing in dismissing this evidence as useless.
From day one Hardin has dismissed all evidence against clemens. If tomorrow they come out with a video tape showing clemens admitting to steroid use, Hardin will dismiss it. That's his job. It means nothing You seem to be giving Hardin credit for doing what any lawyer on the face of the earth would do.
The fact that McNamee has so much to gain in terms of preserving his reputation makes it very easy to question his motives in supplying this evidence.
And clemens doesn't have much to gain by denying? In fact, clemens has a ton more to gain.
they're as useless as Hardin says they are.
If the needles were the only evidence. you'd be right. If the rest of the case is strong, you're wrong.
The government is very strong in cases like this. They wouldn't be wasting their time if they didn't think they could be of some use.
posted by justgary at 12:45 PM on February 03, 2009
They wouldn't be wasting their time if they didn't think they could be of some use.
Riiiigggghhhhhttt. There's never been a prosecutorial snipe hunt. They can think they're of use, but, as per our discussion, I think they'd be wrong.
Way to find an argument, though. I didn't say the rest of the evidence wasn't useful. I said the needles themselves were useless. They're self-serving and, as the link I was responding to pointed out, tainted. And yeah, nice work discerning that I was saying that Hardin was doing his job, and doing it well. There are indeed others who would do it the same way. And?
posted by tahoemoj at 01:34 PM on February 03, 2009
I didn't say the rest of the evidence wasn't useful. I said the needles themselves were useless.
And I'm saying the needles themselves are indeed useless. Put with a strong case, while not a slam dunk, are something entirely different. If I'm a juror and everything points to clemens lying I'm more inclined to believe the needles are the real deal. If the needles are a large part of the evidence, they're in trouble. If it's a small piece of a solid case, it's just one more nail in the case (if they're admitted).
There is no smoking gun. McNamee could be lying, but he wasn't about the others. Maybe Pettitte could have misheard clemens. Maybe clemens would never inject steroids but his wife would. Maybe McNamee staged the needles, or maybe not. Nothing damning by itself. But with enough small pieces, it becomes harder and harder to believe Clemens.
And yeah, nice work discerning that I was saying that Hardin was doing his job, and doing it well.
If simply denying everything is doing a good job, Hardin would be lawyer of the year. The case has been out of the spotlight for a few months, but when it was hot it was very difficult to find anyone that thought Hardin hadn't completely botched the case. Clemens is the only one accused that is in this position. He didn't have to testify in front of Congress. He either has Hardin, or himself if he didn't listen to advice, to blame for being in this ridiculous position.
posted by justgary at 02:16 PM on February 03, 2009
I wonder if the results would be admissible for bolstering purposes. In other words, McNamee testifies at trial and says Clemens used steroids. Hardin attempts to discredit McNamee and call him a liar. Could the DNA evidence be admissible to counter the claim that he's a liar, i.e. as further support for the supposed truthfulness of his testimony?
Also, when does chain of custody kick in? I thought it was when the police or other authority took possession, as opposed to from the first point of use. Otherwise, it seems like a lot of evidence discovered some period of time after a crime is committed would be inadmissible.
posted by graymatters at 02:21 PM on February 03, 2009
If I'm a juror and everything points to clemens lying I'm more inclined to believe the needles are the real deal.
I guess that was a failure on my part to communicate my point. I was saying, and I think this was the point of cjets post, that the needles are a non-issue because they're going to wind up being inadmissible. And the delivery of said needles by McNamee ties into the inadmissibility discussion strongly. Like I said, the police didn't raid a house and find them; they were delivered by someone with a score to settle against the defendant. What Clemens has to gain by denying their validity doesn't matter in determining if a jury gets to see them. "This guy and I are trying to destroy each other's good name, and by the way, I just remembered that I have some evidence that might land him in jail," undermines McNamee's needles in a powerful way.
were thrown in a box by McNamee and kept for years in case he needed to "protect himself" somewhere down the line.
to protect himself from his own allegations regarding Clemens? That's a little bit circular. I'm going to hold on to needles in case I get called a liar for testifying against a client? It just really calls their legitimacy into question.
one of McNamee's lawyers, Richard Emery, said in a telephone interview Friday. "I don't think there's any doubt that it'll be admitted in the case, assuming that it reveals that Clemens' DNA is mixed with steroids or HGH.
I just think there's a doubt. I can't stand Clemens and think he's lying through his teeth, I am just trying to objectively discuss what effect, if any, this "discovery" will have on the ongoing case.
posted by tahoemoj at 03:50 PM on February 03, 2009
This "evidence" seems like it would be more useful against McNamee than Clemens. Why would someone save some old syringes and gauze for years and years? Why did he wait so long to finally release it when the Mitchell report and congressional testimony were some time ago? Because he has a vendetta perhaps? That helps Clemens not McNamee.
Clemens admitted that he got B-12 injections, so this seems like more battering in publicity than real evidence. Even if it turns out it has steroids on it, they could have been added later by McNamee or McNamee lied to Clemens about them being B-12 in the first place.
There is no way this would be used against Clemens in a criminal case. It is possible for civil, but McNamee ends up looking crazy anyway for saving this stuff.
posted by bperk at 03:52 PM on February 03, 2009
Being the dumb, non-lawyer, engineer that I am, I tend to look at things in terms of logic and realism. Granted, McNamee could easily have taken some syringes and put traces of performance enhancing substances in them and then claimed that they had been used by Roger Clemens. How then did McNamee get samples of Clemens bodily fluids or tissue onto those same syringes? If the report is true, and analysis has shown the DNA found on the syringes to belong to Clemens, one has to stretch one's imagination to think that McNamee somehow collected bodily tissue or fluids from Clemens in order to later place it on syringes. In other words, chain of custody not withstanding, to imply that the syringes were used by anyone other than Roger Clemens and later tampered with strains credibility. Having said that, I have to agree with tahoemoj. A decent trial lawyer will try to make sure that at least a few jurors are not the brightest bulbs in the chandelier, and will then give them the full conspiracy theory treatment. The pity is that he will probably get away with it, as did Johnny Cochrane.
posted by Howard_T at 04:01 PM on February 03, 2009
Why did he wait so long to finally release it when the Mitchell report and congressional testimony were some time ago? Because he has a vendetta perhaps?
It's quite clear McNamee never wanted to rat on Clemens. He loved being a friend of Roger Clemens. Only when pushed did he ever implicate Clemens. There was no vendetta. As soon as Clemens released the phone messages that involved McNamee's son, he turned over the needles.
You could say at that point that McNamee could have reacted out of anger. However, I'm not lab tech, but it seems everyone's jumping on the 'he could have added it later' bandwagon. If I draw blood from myself today, and tell a lab I did it 5 years ago, I'm pretty sure they could tell the difference. If I gave them blood from 5 years ago, and told them I did it 6 months ago, they would know the difference.
I don't know what happens to steroids. I don't know if they break down, if you can age them, or whatever. But I don't think it's out of the question that they might be able to tell if McNamee hurriedly put Steroids on the needle as a vendetta or if the steroid is 5 years old (or whatever).
If you then have to go to "he lied to clemens about what was in the needles", well, then you go back to clemens hoping for a jury to be as dumb as rocks.
posted by justgary at 04:16 PM on February 03, 2009
then you go back to clemens hoping for a jury to be as dumb as rocks.
Can they move the trial to L.A.?
posted by cjets at 04:22 PM on February 03, 2009
It's quite clear McNamee never wanted to rat on Clemens.
I don't think it is at all clear that McNamee didn't want to rat out Clemens. Why would McNamee have even talked to Mitchell if he didn't want to rat out Clemens? Mitchell has no subpoena power, he couldn't compel testimony. McNamee volunteered for the role of rat, and then pretended to feel badly about it when Clemens called him.
I doubt that science is so advanced that they would have good testing to indicate the age of steroids, and when they were put on a needle. And, to be admissible the science has to be solid, not new and cutting-edge, but well-accepted in the field. And, that doesn't even begin to touch on the myriad of problems with storing evidence in one's basement for 7 years before expecting reliable scientific tests to be performed on it.
posted by bperk at 04:55 PM on February 03, 2009
I don't think it is at all clear that McNamee didn't want to rat out Clemens. Why would McNamee have even talked to Mitchell if he didn't want to rat out Clemens?
I'm not going to debate this simply because there's no way to get into McNamee's head. That said, I've read everything I can get my hands on and I've never read a single sentence that asserts what you have. Clemens was McNamee's ticket to another world. He only gave up Clemens when pressured, and several times before he finally gave information on Clemens, he actually warned him that the feds were coming for him.
I doubt that science is so advanced that they would have good testing to indicate the age of steroids, and when they were put on a needle.
I'd be shocked if you were right. There might not be enough to test, or there maybe another problem I'm not thinking of. But I'm guessing they could tell steroids that have been thrown in a basement for 7 years from fresh steroids. And I'm guessing it's not cutting edge science. There's a difference between finding out a steroids age and if it's brand new or almost a decade old.
posted by justgary at 06:01 PM on February 03, 2009
Has anyone heard the surreptitiously taped conversation between Roger and Brian and not then and there understood the dynamics of whats going on here. For me, it's quite simple to see who's lying. From that convo . . . Brian was friendly, supportive, sympathetic, apologetic. Roger was coniving, contriving, disingenuous, counterfeit. Thank you Roger for taping that conversation, and giving me clarity.
posted by sonosmith at 09:43 PM on February 03, 2009
One immediate consideration is whether the DNA evidence would be admissible in a trial. The short answer is yes, it would very likely be admissible.
Generally, evidence is admissible if its probative value, which refers to information bearing on the defendant's culpability, outweighs its potential to unfairly prejudice the defendant. In a perjury trial of Clemens, a court would need to assess if Clemens knowingly lied under oath about his alleged use of steroids. The presence of Clemens' DNA on McNamee's syringes would suggest that Clemens lied, meaning the evidence would have high probative value. In contrast, the evidence's potential to unfairly prejudice Clemens would be muted by the fact that any evidentiary defects could be raised during cross-examination.
Although the DNA evidence -- needles that McNamee said he used to inject Clemens and gauze used to wipe blood off Clemens after a shot -- would likely be deemed admissible, Clemens' counsel would have numerous fronts on which to rebuke it during cross-examination.
posted by justgary at 11:11 PM on February 03, 2009
In contrast, the evidence's potential to unfairly prejudice Clemens would be muted by the fact that any evidentiary defects could be raised during cross-examination That had not really occurred to me. Guess that's why I'm still a law student and not yet a lawyer. Although, honestly, don't be shocked if the judge disallows it; a good case can be made either way. And I promise not to say I told you so if it doesn't get in (and I do take a bit of pride in the fact that this legal expert is raising the same arguments I did.)
posted by tahoemoj at 12:14 AM on February 04, 2009
I doubt McNamee's basement is a cold, dark, damp, limestone wall, dirt floor basement. If he was stashing this evidence for later use, I would think the evidence box was treated like a trophy. He probably took it out once in a while and admired his valuble possessions. I don't think he's as dumb as you think. Maybe he saw the implications of what he was doing, for just this reason. So if he was ever called to testify under oath, he had proof he wasn't lying.
posted by scuubie at 01:16 PM on February 04, 2009
or......perhaps he's a mad scientist awaiting a time when he can Clone Roger and have a world champion pitcher as his son.
posted by scuubie at 01:18 PM on February 04, 2009
McNamee had provided syringes, gauze pads and other items used to inject Clemens that he said were stored in a FedEx box in his basement. Wadler wondered how long traces of a steroid or HGH would last "in an unrefrigerated state"?
Some steroids, such as Winstrol, are more stable and "probably still detectable," Wadler said. "The same scenario with HGH is a bigger problem. And if [tests for drug traces] turn out to be negative, could it be that, over time, the molecule was significantly altered? Or it never was there in the first place?"
It's pretty clear from this doctor's opinion that steroids, like anything else, degrade over time. Seems logical that new steroids added to the syringe would be clearly noticeable. The bigger problem for McNamee is would steroids still be detectable after much time held in that condition.
posted by justgary at 07:02 PM on February 04, 2009
In all but one very famous case DNA has been found to be a very powerful piece of evidence. Maybe Hardin will end his case with, "McNamee didn't stick so you must acquit."