Bloomberg News

Clemens Prosecutors Revisit DNA Evidence as Trial Ends

June 12, 2012

U.S. prosecutors sought to bolster the credibility of their DNA and drug use evidence against Roger Clemens, the former New York Yankees pitcher, as testimony in his perjury trial ended in Washington.

The government, which yesterday finished presenting its case against Clemens, put on three witnesses to rebut defense allegations that the evidence linking Clemens to a needle and cotton balls containing anabolic steroids was contaminated or faked. Clemens is accused of lying to Congress by denying that he used steroids and human growth hormone.

U.S. District Judge Reggie Walton scheduled closing arguments for today, and the jury may begin deliberations in the afternoon.

Clemens, a seven-time Cy Young Award winner as the best pitcher in his league, is charged with one count of obstructing a congressional investigation into the use of performance- enhancing drugs by professional athletes.

He’s also charged with three counts of making false statements and of perjury stemming from his testimony to a House panel. If convicted, he faces as long as 21 months in prison.

Needle, Cotton

The prosecution’s evidence includes a needle and cotton with Clemens’s DNA that tested positive for steroids. The material was given to prosecutors by Brian McNamee, Clemens’s former trainer. McNamee, who spent six days testifying, told jurors that he gave the ballplayer injections of steroids and HGH during the 1998, 2000 and 2001 baseball seasons while both men worked for the Toronto Blue Jays and the Yankees.

McNamee told jurors he saved needles, gauze and vials from one of the injections in 2001 and kept some of the items in a Miller Lite beer can that he took from the recycling bin in Clemens’s apartment. He testified he showed the material to his wife the night he brought it to their New York home and kept it in a FedEx box.

Walton, for a second time, denied a defense motion to dismiss the case. He did say he’s considering whether to throw out one charge amid the 13 false or misleading statements he’s accused of that has to do with Clemens’s denial that he attended a pool party at the home of fellow Blue Jays teammate Jose Canseco in 1998.

Prosecutors, as part of their rebuttal case, called back to the stand two of their earlier witnesses. Cynthia Morris- Kukoski, a toxicologist with the Federal Bureau of Investigation, testified that she doesn’t consider the history of items that come into her laboratory for analysis. She also said that her lab will test items that have been “co-mingled” with other items.

Too Compromised

A defense toxicology expert, Bruce Goldberger, testified earlier that the material given to the government by McNamee was too compromised in the way it was handled and stored to be tested accurately.

“It’s not the scientist’s job to weigh the evidence,” she said. “We’re just one small piece of the puzzle. It’s up to judge, the lawyers and jury to put all those pieces together.”

Edward Blake, a DNA expert who worked on the report to the government on tests linking Clemens’s DNA to the medical waste, testified that the amount of biological material found on the needle was too small to have been planted there intentionally.

He also tried to challenge assertions from an earlier defense expert, Marc Taylor, president of Technical Associates Inc., that McNamee’s DNA couldn’t be ruled out as being on the needle.

Biological Material

Under cross examination, Blake was pressed by Clemens’s lawyer, Michael Attanasio, as to why his report didn’t specifically note that McNamee couldn’t be the source of the biological material found on the needle.

“There’s no mystery here, counsel, you’re trying to confuse this jury and you’re trying to confuse me,” Blake said.

The government’s final witness was John Longmire, the lead FBI agent on the case. He was asked about the government’s interviews with Eileen McNamee, the estranged wife of Brian McNamee who last week contradicted her husband’s testimony.

Longmire, who was called earlier by both the government and the defense, suggested that on the second occasion she met with investigators, Eileen McNamee changed her story about seeing a FedEx box in her home that allegedly contained the medical waste of Clemens and other ballplayers. The McNamees are involved in divorce proceedings in New York.

Earlier yesterday, Clemens’s lawyers, who called 23 witnesses during the trial, ended their defense with Jerry Laveroni, former head of player security for the Yankees.

‘Zero’ Credibility

Laveroni said McNamee has “zero” credibility.

“I don’t think he could be believed under oath,” Laveroni said in a response to a question from Rusty Hardin, a lawyer for Clemens.

Just before resting, Clemens’s attorney read a “stipulation” that the then-pitcher was tested for steroids by Major League Baseball from 2003 through 2007 and never found positive. The document noted that MLB didn’t test for human growth hormone at the time.

After the jury was sent out of the room, Walton called Clemens to the lawyer’s lectern and asked him whether he had talked to his attorneys about his right to testify in his own defense.

“Yes sir, I am not testifying,” Clemens said. It was the first time he had spoken during the trial, now in its ninth week.

The case is U.S. v. Clemens, 1:10-cr-00223, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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