Ben Margot/AP
Barry Bonds

Years-Old Evidence Could Bring Down Bonds and Clemens

February 04, 2009 05:35 PM
by Denis Cummings
Perjury cases against both athletes are supported by samples from 2000 and 2001, but there are many legal questions over the reliability and admissibility of the evidence.

Bonds Nearing Trial, Clemens May Face Charges

U.S. District Court Judge Susan Illston on Wednesday unsealed hundreds of pages of court documents detailing the federal government’s case against retired slugger Barry Bonds. At the heart of the case are urine samples taken in 2000 and 2001 by the BALCO laboratory that tested positive for the steroids methenelone and nandrolone.

Bonds is facing perjury charges for allegedly lying to a federal grand jury in December 2003 when he said he never knowingly used steroids. Federal prosecutors raided BALCO, which allegedly supplied Bonds with designer steroids, in 2003, seizing BALCO-administered samples.

Bonds’ legal team asked Judge Illston on Jan. 15 to exclude the samples from the trial, set to begin March 2. The defense claims that, because BALCO did not have a stringent process for administering or recording tests, the samples cannot conclusively be linked to Bonds. The judge begin hearing arguments to exclude the evidence Thursday, according to The New York Times.

A similar piece of evidence is at the center of the perjury investigation into retired pitcher Roger Clemens, who testified to Congress last February that he never used performance-enhancing drugs. On Tuesday The Washington Post reported that, according to anonymous sources, syringes allegedly used to inject Clemens with steroids from 2000 to 2001 have tested positive for Clemens’ DNA.

The syringes were handed over to federal prosecutors in January 2008 by Brian McNamee, Clemens’ former trainer, who claims to have injected Clemens with steroids nearly 40 times between 1998 and 2001. McNamee stored the syringes, needles and gauze pads in his basement, hiding them from prosecutors during the Mitchell Report investigation. If the DNA tests on the syringes are verified, and if the syringes are found to contain traces of steroids or human growth hormone, Clemens could face perjury charges.

Clemens’ legal team has argued that the DNA evidence isn’t credible because McNamee could have doctored it during the seven years it was in his possession. “It will still be evidence fabricated by McNamee,” attorney Rusty Hardin told The Washington Post. “I would be dumbfounded if any responsible person ever found this to be reliable or credible evidence in any way.”

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Analysis: Assessing the evidence against Bonds and Clemens

The legitimacy of both Bonds’ urine sample and Clemens’ DNA sample is being questioned both because of the age of the samples and the manner with which they were obtained.

The defense for Bonds and Clemens will both take issue with the chain of custody of the evidence. “That refers to procedures used to ensure physical evidence … is not subject to tampering, misconduct or anything that raises questions about whether the evidence is what the government says it is,” writes Yahoo’s Josh Peter.

In the Bonds case, BALCO had a lax protocol for authenticating and maintaining records of test samples. Furthermore, there were no witnesses when Bonds provided his sample and he never signed anything saying the samples were his. “The integrity of the samples from every step, A to Z, can be questioned,” BALCO founder Victor Conte told Yahoo.

Clemens’ defense likely has a stronger case. The evidence spent seven to eight years in the basement of trainer Brian McNamee, with needles allegedly stored in a beer can, which may affect the reliability of DNA tests. There is also reason to believe that McNamee, who benefits from discrediting Clemens, might have tampered with the evidence.

Nonetheless, according to Sports Illustrated’s legal expert Michael McCann, the DNA evidence—assuming that it is verified—would likely be admitted in court because its “probative value, which refers to information bearing on the defendant's culpability, outweighs its potential to unfairly prejudice the defendant.”

Related Topic: Saving blood and urine samples

Baseball has rejected suggestions by members of Congress and scientists to save its urine samples for future testing, specifically to test for human growth hormone once a reliable test is developed. The New York Times wrote in 2006 that one issue facing baseball was “whether a test from frozen urine would survive legal challenges.”

The International Olympic Committee, on the other hand, has decided to save all blood samples collected during the 2008 Beijing Games for eight years so that they can be tested for substances that are not yet detectable. “Long gone are the days when an athlete gets a negative test after a competition and disappears with the medal forever,” said Andy Parkinson, head of operations of Drug-Free Sport in Britain. “Athletes who cheat are not safe even eight years after competitions.”

The IOC is currently testing about 500 blood samples; 400 of the tests are for CERA, a blood-boosting drug for which a test was developed and validated this fall. Results are expected in March.

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