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Roger Clemens v. Brian McNamee: The Saga Continues

Roger Clemens

Brian McNamee

Brian McNamee

Although the allegations of performing enhancing drug use against former baseball standout Roger Clemens have been quiet in recent months, a case is apparently moving forward against Clemens for committing perjury for testifying in front of Congress that he had never used performance enhancing drugs. The Mitchell Report on doping in baseball contained testimony from Clemens’ former trainer Brian McNamee who stated that he injected Clemens at least 16 times during the years 1998, 2000 and 2001.  Here is a link to the New York Times article for background information about the case:

The New York Times reported earlier this week that federal investigators asked Roger Clemens’ former trainer Brian McNamee to turn over personal DNA samples to compliment evidence he turned over last January. McNamee had collected Clemens’ DNA evidence on syringes, needles, and gauze pads that McNamee alleged were used to inject Clemens with steroids and human growth hormones which are banned substances in baseball. McNamee’s lawyers believe that the evidence will link Clemens to the use of performing enhancing drugs and show that McNamee was telling the truth in his testimony while Clemens committed perjury. In response Clemens has filed a defamation lawsuit against McNamee and denies McNamee’s allegations.


Are the DNA Samples on the Syringes, Needles, and Gauze Admissible as Evidence in a Court of Law?

The short answer in my opinion and the opinion of Clemens’ lawyers is that the evidence is not admissible and it will never see the inside of a court room.  In order for evidence to be admissible it must be authenticated.  Under normal circumstances this is an easy standard to meet, however in this case it will be extremely difficult to prove due to the evidence being from at the earliest 2001 and there being no record of who has had custody of the evidence in the past.    

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent (McNamee) claims. Also there must have been an unbroken chain of possession. In this case, the evidence in question is the syringes, needles, and gauze with Clemens’ DNA linking him to performance enhancing drugs. However there is no way in which to show that McNamee injected Clemens with performance enhancing drugs even if the evidence contains performance enhancing drugs as well as Clemens’ DNA. McNamee as Clemens’ trainer for many years likely injected Clemens with many non banned substances over the years in which syringes, needles, and gauze were used. McNamee or somebody else could have easily tainted the evidence with performance enhancing drugs or Clemens’ DNA after the needles were used and at some point after 2001. In short, there is no way to authenticate the evidence to show that McNamee injected Clemens with performance enhancing drugs. There is no unbroken chain of possession as McNamee claims that the evidence was sitting in his basement for many years before it was turned over to authorities. There would have to be a witness, video evidence or something to that affect. All that is present is that there are needles with Clemens’ DNA and performing enhancing substances present, not that Clemens actually used the drugs. Therefore this evidence will most likely never see the inside of a courtroom and Clemens’ will not be found guilty of perjury due to this evidence. 

What About Clemens’ Defamation Claim Against McNamee?

In January 2008, Clemens filed a defamation lawsuit against McNamee in response to McNamee’s performance enhancing drug allegations.  In order for a party to be found guilty of defamation of a public figure the plaintiff (Clemens) must prove that (1) there was a defamatory statement (2) of or concerning the plaintiff (3) publication to a third party and (4) damages to the reputation of the plaintiff.  In addition if the plaintiff is a public figure (which Clemens is) (5) falsity and (6) actual malice must be shown.

The first factor that must be proven by Clemens is that there was a defamatory statement present.  In order for this to be proven, Clemens will have to prove that he had never used any kind of performance enhancing drugs as McNamee originally claimed in the Mitchell Report.  This will be extremely difficult to prove because human growth hormone is difficult to detect and clean medical records may not be enough to prove Clemens’ innocence.  If Clemens is able to meet the first factor however, he will most likely be able to meet the remaining factors. The statements by McNamee concerned Clemens, and he will be able to prove that the statement caused damage to his potential Hall of Fame bid and reputation.  Additionally if Clemens is able to prove that there was a defamatory statement as required by the first factor, Clemens will be able to prove falsity, that is that the statements by McNamee was not true and false.  Finally Clemens will have to prove that actual malice was present.  This means that Clemens must prove that McNamee had knowledge of his false statements or was negligent in disclosing the information.  Clemens would be able to prove this factor if he is able to prove that McNamee had the intent to make false statements about his character and ruin his reputation.  In other words if McNamee knew Clemens never had taken any performance enhancing drugs and claimed that he had, then this factor would be met. 

After looking at the evidence available I believe that Clemens would have extreme difficulty in proving his defamation case against McNamee because he simply cannot prove his innocence that he has never used performance enhancing drugs due to the difficulty in tracking any sort of drugs in his body during the time the allegations were made.  He would also have a difficult time proving malice on behalf of McNamee. 

It will be interesting how this case plays out, but I believe the evidence will be found inadmissable and the defamation suit against McNamee will be dropped.    

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Richard J. Symmes, Esq
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