Toxicologist testifies on Clemens evidence

Toxicologist testifies on Clemens evidence

Toxicologist testifies on Clemens evidence
WASHINGTON -- As the federal perjury trial of Roger Clemens continued into its eighth week Tuesday, a forensic toxicologist testified for the defense after considerable legal arguments regarding his appearance, eventually telling jurors that cross-contamination cannot be excluded in relation to key evidence in the case.

Dr. Bruce Goldberger, a professor of toxicology at the University of Florida, said the evidence Brian McNamee kept in a beer can for more than six years is "very unusual evidence with the commingling" of items, and that the government cannot reasonably suggest that items found to contain both Clemens' DNA and residue of steroids were reliable enough to know for certain they hadn't mixed with other items in the can.

"I think the government's conclusions are overreaching in regard to the interpretation of this evidence," Goldberger said.

Goldberger's testimony was the major development on a day in which legal arguments intervened for more than an hour Tuesday morning before jurors could even get settled in their seats following a four-day weekend break. After lengthy arguments about Goldberger preceded his afternoon testimony, the day ended with the appearance of the defense's DNA expert, Marc Scott Taylor, who is expected to suggest that a needle stored outside the can likely containing Clemens' DNA, per a government expert's testimony, might also have markers pointing to McNamee's DNA.

Once the trial got rolling Tuesday morning, the defense called former pitcher Mike Boddicker, who became the seventh person with Major League playing credentials to testify in the case, telling jurors he once saw Clemens receive a vitamin B12 injection. That appearance came after current Orioles broadcaster Joe Angel testified about seeing Roger Clemens play golf the morning Clemens was spotted at an afternoon lunch party at Jose Canseco's house, a gathering Clemens denied under oath attending.

Along the way, Judge Reggie Walton informed the attorneys that one of the jurors is scheduled to leave for Germany on June 19, and will be gone for six months, another possible complication in the timing of the trial, which originally was scheduled to last 4-6 weeks. Only one alternate juror remains along with the 12 jurors who will decide Clemens' fate.

Clemens, who won a record seven Cy Young Awards in a 24-year Major League career, is charged with three counts of making false statements, two counts of perjury and one count of obstruction for telling a Congressional committee that he never used steroids or human-growth hormone.

McNamee, Clemens' strength and conditioning trainer for the better part of a decade, testified before Congress and at this trial that he injected Clemens with performance-enhancing drugs numerous times, saving evidence in a beer can and a mailing box after injecting Clemens in August 2001. Clemens testified all McNamee injected him with was vitamin B12 and lidocaine.

When jurors returned for the first time since Thursday, the two legal sides argued outside their presence over whether one of the obstructive acts -- the one related to whether Clemens attended the party at Canseco's house in 1998 -- in the obstruction of Congress charge should remain, and how it should be addressed with the first witness of the day. Walton ultimately ruled that it will remain in play and wound up limiting the scope of testimony from Angel, who was the Marlins' play-by-play announcer in 1998.

The act, a statement in which Clemens said he was not at Canseco's house that day, is one of 13 remaining in the obstruction of Congress charge, only one of which needs to be proven to obtain a conviction. Saying the statement by Clemens was "categorically wrong" and that the statement "became a very important issue for the committee" as it tried to determine if the Mitchell Report was accurate, Assistant U.S. Attorney Steven Durham argued that Act 15 should remain in the charge, particularly since consideration on dismissing charges during the trial skews toward the prosecution.

After Walton disallowed video clips of his game broadcasts from the time, Angel testified that he saw Clemens between 8:30 and 9 a.m. at the golf course, that a round at the Weston Hills Country Club generally takes 4 hours and 15-30 minutes, and that Canseco's house was about 10 minutes away from the country club.

Earlier in the trial, Alexander Lowrey, who was 11 at the time, said he attended the party from around noon or 1 p.m. to around 3 p.m. A photographic technologist testified that a photo of Lowrey and Clemens at the side of Canseco's pool was taken between 2:55 and 4:20 p.m. McNamee said he saw Clemens and Canseco talking with another man at the party, and that he likely would have left at around 2:30 p.m. to get to the ballpark in time for that night's game.

Boddicker, meanwhile, related a story of when he and Clemens were with the Red Sox in 1989 or 1990, he walked in the training room and saw Clemens being injected in the buttocks with B12. Boddicker said he never got injections himself because he is uncomfortable with needles, but knew it was B12 because he saw the vial and he was "99 percent" sure it was trainer Charlie Moss giving the injection. Moss testified earlier in the trial that he had "never injected another human being."

Asked by Durham how he knew it was B12, Boddicker said, "I saw the vial. It said B12 on it. I was asked if I wanted a B12 shot. I put two and two together."

Later, massage therapist Rohan Baichu testified about giving Clemens massage therapy several times a week while with the Yankees and the Astros, becoming another defense witness to extol the virtues of Clemens' work ethic and leadership.

The arguments about Goldberger's appearance were contentious, as the government tried to narrow his testimony as much as possible. Arguing against Goldberger being declared an expert witness, Assistant U.S. Attorney Daniel Butler said the defense was "clothing the witness as an expert" when he hadn't analyzed the evidence himself and would be speculating as to its collection and storage causing problems. Lead defense attorney Rusty Hardin countered that the defense should be allowed to elicit testimony about "how [the evidence] was stored and mixed" and how that could have contaminated the evidence, especially since government witnesses had drawn conclusions about the evidence.

Walton ultimately ruled that Goldberger could not suggest the evidence was manipulated or manufactured, a theory the defense has tried to get across to jurors, but that cross-contamination can occur in certain circumstances, such as how McNamee gathered and stored the evidence.

"It's impossible, in my belief, to rule out cross-contamination," Goldberger said once Hardin interviewed him and the jury was back in the courtroom.

Using language Hardin used in his opening statement and saying that students learn in "Forensics 101 that there are no maybes," Goldberger made every effort to suggest that the evidence McNamee turned over to the government in 2008 was below the standards of evidence he's accustomed to receiving in his laboratory's study of criminal cases.

"If you submit garbage to the laboratory, more often than not you're going to have garbage at the end," Goldberger said.

John Schlegel is a national reporter for MLB.com. This story was not subject to the approval of Major League Baseball or its clubs.