Clemens, Trainer to Testify on Steroid Use

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A House panel holds a hearing Wednesday on steroid use in baseball. Pitcher Roger Clemens and his former trainer will testify under oath. Stan Brand, a criminal attorney and a former commissioner of minor league baseball, talks about some of the legal issues involved.


A baseball star and his accuser are expected to tell radically different stories under oath today. Roger Clemens told CBS he did not use performance-enhancing drugs.

Mr. ROGER CLEMENS (Baseball Pitcher): Never happened. And if I have these needles and these steroids and all these drugs, where did I get them?

INSKEEP: How about Brian McNamee? He is the trainer who says he gave the drugs to Clemens. Contradictory testimony before Congress will raise legal questions that we will discuss with Stan Brand. He is the vice president of Minor League Baseball.

Mr. STAN BRAND (Minor League Baseball): Right, and the other hat I wear is criminal defense lawyer and oddly, I never thought those two lines would intersect. I used to say the wonderful thing about minor league baseball was, you play a game, somebody wins and somebody loses, but nobody goes to jail at the end of the day.

INSKEEP: Well, not yet. Give it some time.

Mr. BRAND: Yeah.

INSKEEP: If both of these guys stick to their stories under oath, is it reasonable to say that one of them committed perjury?

Mr. BRAND: Well, not in a court of law necessarily, because swearing contests between people do not make a perjury case. There has to be an independent way of corroborating one side or the other. That could be circumstantial, but it has to be more than just two people swearing different versions.

INSKEEP: So if one of these guys is lying, one of the calculations he might have to make is how much evidence is out there that would contradict him, not just the other guy.

Mr. BRAND: That's right. Of course, one never knows what evidence is out there. Who knew that Mr. McNamee had saved syringes and gauze pads from six years earlier?

INSKEEP: And is that something that could be used? I guess it could - DNA testing?

Mr. BRAND: It could be. There are some problems with it from an evidentiary standpoint. Obviously it has to be tested, which the government is doing now. And then beyond that, I think it's going to be an issue, what we call chain of custody. That is, was that material set aside and secured against being manipulated or tainted by some other person or process? And that's an issue with evidence in every case.

INSKEEP: What other evidence is out there that might help us determine which of these two men is closer to the truth?

Mr. BRAND: Well, in the Mitchell report, what George Mitchell relied on was essentially two types of evidence.

INSKEEP: And you are talking about the former senator who investigated steroids.

Mr. BRAND: Right, on behalf of Major League Baseball. He relied on two types of evidence: testimonial evidence from people who had first-hand knowledge or awareness of what had been done; and secondly, documentary evidence. He had canceled checks and other paper records indicating purchases from people who dispense steroids. So those are the basic types of evidence that you would rely on to corroborate one side of the story or the other.

INSKEEP: Why would either of these men take the risk of testifying under oath before Congress if they didn't have to?

Mr. BRAND: Why does anyone take the risk, in this day and age, after Martha Stewart, after Scooter Libby, after the scores of cases that have been brought charging people with false statements and obstruction. I for the life of me can't understand why anyone would do that, since at the end of the day the best they're going to be able to do is fight to a draw over whether they did or didn't engage in the particular conduct alleged.

INSKEEP: As a lawyer, how do you prepare a client for a situation like this?

Mr. BRAND: Well, in the first instance, the way I prepare my clients is by not letting them testify under oath without immunity. I think anyone who advertises themselves the way these witnesses have, and is walking in under oath, is walking into a potential ambush.

INSKEEP: Stan Brand is vice president of Minor League Baseball and a criminal lawyer in Washington, D.C. Thanks very much.

Mr. BRAND: You're welcome.

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