Judge could unseal all BALCO evidence

SAN FRANCISCO – Federal prosecutors in the Barry Bonds perjury case have reversed course in a move that some observers believe is grounded in desperation, asking the judge to make public the entire Bay Area Laboratory Co-Operative investigation, including evidence and testimony from numerous high-profile athletes.

The surprise request, made in a government motion filed late last week, represents a radical departure from an official federal policy of secrecy – albeit one marred by explosive leaks to the media – that has defined the massive, six-year steroids investigation. The timing has court analysts wondering whether it’s a bold play by aggressive prosecutors or a sign the government is running out of legal options and seeking an escape route.

The government’s motion to unseal the BALCO documents will be heard by Judge Susan Illston on Dec. 19. Should Illston grant the request, the records pertaining to the alleged steroid use by baseball players Gary Sheffield, Jason Giambi and Benito Santiago would be made public. The same applies for former track star Marion Jones, NFL linebacker Bill Romanowski and many other athletes.

Meanwhile, both sides are still waiting for Illston to rule on a defense motion requesting that she strike two-thirds of the counts against Bonds because, the all-time home run leader's attorneys contend, they are redundant and vague.

Last week, the prosecutors appealed Illston’s light sentence in the perjury case of cyclist Tammy Thomas, one of two recent BALCO convictions that, to the dismay of the government, resulted in no jail time.

The BALCO investigation has thrived on intrigue and the clandestine – generating splashy headlines by focusing on high-profile athletes, holding Congressional hearings and amassing 10 convictions through secret grand jury testimony, sealed documents and undisclosed interviews. By asking the judge to remove the long-standing protective order, prosecutors appear to be signaling that the BALCO probe has come down to Bonds.

Prosecutors have tried the home run king in the media as well as federal court all along, but in asking that the entire BALCO investigation be made public, they might be abandoning the possibility of other prosecutions.

"Many of the investigations which were active in 2004 have been concluded or are no longer active," wrote the government in the motion. "Accordingly, the need for these materials to be subject to the heightened restrictions of the original protective order no longer exists."

Star athletes promised immunity and secrecy from the federal government in return for their grand jury testimony may now be forced to endure prime time reruns of evidence of their alleged use of performance-enhancing drugs. Search warrants and medical and lab reports also would be released for the first time. The BALCO files reportedly run more than 30,000 pages, detailing nearly every tentacle in this six-year-old octopus.

Attorneys for three different athletes who testified before the San Francisco grand jury were caught off-guard by the motion. "I've heard nothing from the government," said Brian O’Neill, attorney for Giambi. "Usually you would be given notice."

Said Edward Williams, who represented Olympic sprinters Calvin and Alvin Harrison before the grand jury: "I'm amazed that I was not notified of this."

In August, the Bonds defense team requested the production of all the grand jury transcripts – but not the entire BALCO record – in an expansive but routine discovery request. Bonds' lawyers made no request to make the testimony and records public.

Government prosecutors normally seek to limit the witness testimony, evidence and documents turned over to the defense. Here the government made the novel argument that since the Bonds team made a discovery request for all of the BALCO transcripts, terminating the protective order would reduce confusion "regarding the approved use and distribution of these materials." Now that the witnesses and several of their transcripts have become public, the need for secrecy "no longer exists," argued the government.

That rationale struck some court experts as dubious. "They're saying that because someone committed a federal crime, all of the testimony will be made public," Williams said. "That is not a sound basis for releasing the material."

The most serious BALCO conviction was for breaking this very same federal protective order. Troy Ellerman, the former attorney of BALCO vice president James Valente, began serving a 30-month jail term in April 2007 for violating the order when he let San Francisco Chronicle reporters read and copy some of the sealed transcripts. The newspaper printed brief excerpts but published nothing about the majority of the witnesses who testified before the grand jury.

Former prosecutors called the government's move contrary to standard tactics. "For a prosecutor to want to make this grand jury material public before a trial is very unusual," said Charles La Bella, a former U. S. attorney and former chief of the criminal division for the Southern District of California who now practices criminal defense law in San Diego. "Normally the prosecutor would want to protect witnesses before trial. You don't want to alert the defense to any testimony they don't know about."

Even stranger is that these prosecutors won a secret 2007 order before Judge Illston to force Victor Conte of BALCO to return his copy of the same grand jury material. This February, Conte prevailed upon Illston to reverse that finding, arguing that he might need the documents if called to testify in the Bonds trial.

Nor is it clear the government has honored the strict federal rules on grand jury secrecy. On Sept. 28, 2007, Sports Illustrated reported that IRS agent Jeff Novitzky asserted at a 2006 anti-doping conference in Colorado Springs, Colo., that the boxer "Sugar" Shane Mosley took the drug EPO before one of his fights. The Washington Post reported that lead BALCO prosecutor Matthew Parrella spoke at the same conference.

"The government would have needed [court authorization of disclosure of grand jury matters] to do that," said La Bella, a former federal prosecutor. "Any other disclosures would be illegal."

Some observers believe that the full BALCO record – including lab tests – would be highly damning to Bonds. The government says it wants to avoid an unexplained claim of potential "litigation" from the Bonds defense team over production of the transcripts. Prosecutors argue that going public is the best way to stay on schedule for the March 2009 trial date.

But federal judges don’t scrap protective orders without a legitimate law enforcement reason, experts said. Heading into a nationally scrutinized trial about cheating in sports, Illston will also be concerned about ensuring a level playing field.

"If this is released pretrial, it's impossible to believe that jurors would not have read some of it," La Bella said. "It could pollute the jury pool and make it very hard to get the trial off the ground."