The Media Overlooked Questionable Tactics of Star Witness in the Quest for a Blockbuster StoryThe Media Overlooked Questionable Tactics of Star Witness in the Quest for a Blockbuster Story
The case of the United States of America v. Barry Lamar Bonds was scheduled to begin on Monday, March 2, 2009. However, federal prosecutors desperately filed a last-minute appeal against an evidentiary ruling by U.S. District Judge Susan Illston in order to postpone the trial until as late as next year. Prosecutors faced a major problem when they were unable to secure Barry Bonds’ trainer, Greg Anderson, as a key witness in their steroid-related perjury case. Prosecutors’ star witness going into the trial was former IRS Special Agent Jeff Novitzky. This was why the government’s case against Barry Bonds was doomed.
The general public has been caught by surprise with news of the incredibly weak case against Barry Bonds. The government’s case against Barry Bonds had its hero and its villain. Barry Bonds was the rude and arrogant baseball player who cheated the integrity of baseball with the use of anabolic steroids to shatter sacred records. As much as Bonds inspired hatred, scorn and condemnation, Jeff Novitzky was adulated as the country’s most persistent and determined hero in the war against steroids in sports. Novitzky was “an unlikely contender for the role of the Eliot Ness of the steroids age” according to the New York Times. The media loved Jeff Novitzky as he aggressively investigated high-profile athletes around the country who were suspected of using steroids.
The public’s admiration for Novitzky increased as politicians jumped on the anti-steroid bandwagon to support the steroids in sports investigation. Former President George W. Bush gave his tacit support to the investigation by talking about steroids during his 2004 State of the Union Address. Former Attorney General John Ashcroft paid tribute to the steroid investigations by a special press conference to announce the BALCO indictments.
Unfortunately, Jeff Novitzky was not what he seemed. The San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams published stories implicating several athletes in the systematic use of performance-enhancing drugs. The stories leaked testimony that demonized baseball players such as Barry Bonds. But the stories, intentionally or unintentionally, omitted the other side of the story that including the questionable actions and alleged misconduct and wrongdoing by Jeff Novitzky.
Very few reporters dared to criticize Novitzky. After all, there was “something simply un-American” about steroid use in sports according to then-Senator Joseph Biden. During the presidency of George W. Bush, criticizing the government was not only frowned upon but considered unpatriotic.
A few sports writers had the courage to go against the prevailing journalistic wisdom and report the “other side of the story.” Jonathan Littman, sports writer for Yahoo Sports, followed up on several allegations made by BALCO mastermind Victor Conte. Littman’s investigative reported highlighted several issues that had been ignored or overlooked by most of his colleagues.
Jonathan Littman interviewed all three of the original lawmen who were assigned to the BALCO / Barry Bonds investigation and worked alongside Special Agent Novitzky. Iran White, an agent with the California's Bureau of Narcotics Enforcement (BNE) in San Jose, and two other un-named law enforcement agents told Littman that Novitzky expressed extreme hatred for Barry Bonds at the exclusion of other athletes that were similarly implicated such as Jason Giambi and Gary Sheffield. Novitzky was obsessed with bringing down Bonds. The prospect of catching Bonds was used by Novitzky to lure other law enforcement agencies into supporting his investigation.
Novitsky’s credibility was hurt when three lawmen alleged that Jeff Novitzky discussed cashing in on a book deal or movie adaptation of his role in the largest steroid scandal in sports history. These allegations were corroborated by private investigators working with Barry Bonds’ defense team who also interviewed White and the two other drug task force agents who worked with Novitzky during the early stages of the investigation. Novitzky denied the allegations in a sworn court declaration; he alleged that any such statements were made in jest and his words "might have been misconstrued."
Victor Conte, and several others implicated in the BALCO investigation, accused Novitzky of potentially committing criminal misconduct with acts ranging from falsifying investigative reports to illegally coercing statements to improperly serving search warrants during the raid.
"It's my opinion that Novitzky is to law enforcement, what I was to sport. I helped athletes to use drugs, win medals and break records. I believe Novitzky has helped law enforcement to lie, steal and cheat in order to win cases,” according to Victor Conte. “In both instances, the real question is whether or not the end has justified the means. It's my opinion that it has not, in either case. What's wrong is wrong and there is no justification for wrongdoing in sport or in law enforcement."
Jeff Novitsky alleged that Victor Conte provided a list of names, including that of Barry Bonds, who he had provided with performance enhancing drugs. Conte stated that the list was entirely fabricated by Novitzky.
Apparently, Jeff Novitzky also forgot to serve the search warrant prior to the BALCO raid; Conte claims the warrant wasn’t served until after the raid had been completed. The detailed notes of IRS special agent Wendy Bergland supported Conte’s assertion.
Bergland’s memorandum also revealed a missing period of time totaling 53 minutes that did not appear in the official government report. Conte alleges that Jeff Novitzky aggressively pressured him to testify against implicated athletes suggesting that he wear a wire.
Judge Susan Illston, the presiding judge in the Barry Bonds case, characterized some of Novitzky’s actions in his raid of Comprehensive Drug Testing (CDT) as a "callous disregard" for constitutional rights. Novitzky’s raided CDT presumably to obtain evidence against Barry Bonds and a few other baseball players suspected of steroid use. Instead, he seized all of the lab reports and samples from all 104 baseball players who tested positive for prohibited substances. Judge Illston and three appeals judges demanded that Novitzky return the evidence; Novitzky refused.
The Treasury Inspector General for Tax Administration (TIGTA) opened an investigation into Jeff Novitzky and his fellow agents arising from missing evidence seized from Greg Anderson’s house; $600 of the $63,920 disappeared after being confiscated from the residence of Barry Bonds’ trainer. "Novitzky and three other IRS special agents hired lawyers and signed proffers before cooperating with the investigation," according to Victor Conte. "There were inconsistencies with some of the statements. It was acknowledged in the report that the investigation could cause credibility issues for the agents if the BALCO case ever went to trial."
No legal action has been taken against Special Agent Novitzky for any alleged improprieties. But Jeff Novitzky’s questionable tactics during the BALCO-related interrogations will likely cause considerable credibility issues for the government’s star witness when he takes the stand against Barry Bonds
"Certainly how the investigation was carried out very well could be part of the defense's case down the road… if the lawyers can make a case for relevance,'' according to Robert D. Richards, a professor of journalism and law at Pennsylvania State University.
The desperation of federal prosecutors in the Bonds case comes as a surprise to many readers. Fortunately, there are a few journalists, like Jonathan Littman, who ignored the popular anti-steroid bandwagon of reporters, and pursued the allegations made against Jeff Novitzky by Victor Conte and others. Their objectivity has restored integrity to an era of investigative journalism consumed by steroid hysteria.
“The Federal Government Delays Barry Bonds Trial by Filing Appeal,” March 2, 2009
“The Persecution of Barry Bonds,” February 27, 2009
“Who's on trial in the Bonds case? Not just Barry,” February 10, 2009
“BALCO founder Victor Conte has tell-all book ready,” March 30, 2008
“Novitzky's reach goes from BALCO to Clemens,” January 8, 2008
By Millard Baker