Before a jury gets to decide if it believes Barry Bonds, the judge in the case may decide whether she believes Jeff Novitzky, the lead BALCO investigator.
Susan Ilston, the highly regarded district judge in the Bonds perjury case, is one of four federal judges who have condemned the tactics and questioned the candor of the indefatigable IRS agent Novitzky, according to a recent appellate decision.
The January 24, 2008, decision of the Ninth Circuit Court of Appeals in U.S. v. Comprehensive Drug Testing, concerning Novitzky’s extension of a warrant for 10 BALCO-related Major League players into a bold grab for the drug-testing records of about 100 players, has brought into greater focus starkly opposing judicial views on the aggressive methods of BALCO prosecutors and investigators.
The Bonds perjury case began and may end with Novitzky, who three former fellow investigators said has had a longstanding vendetta against the slugger. Mike Rains, Bonds’ attorney, has said Novitzky and others unfairly tried to lead his client into a perjury trap.
And, yes, this is the same Jeff Novitzky that obtained confessions from former New York Mets clubhouse attendant Kirk Radomski and former New York Yankees trainer Brian McNamee that formed the backbone of the Mitchell Report.
Novitzky was contacted for this article and declined to comment.
Novitzky high-jumped 7 feet in high school and played basketball at San Jose State before an injury. And early in the BALCO investigation he went so far as to join Bonds’ Burlingame gym, an unusual step for an IRS agent. Dr. Don Catlin, the director of the UCLA Olympic Analytical Laboratory and the man who decoded the mystery BALCO steroid “the clear,” has called Novitzky a hero.
It was Novitzky who several years ago sought out narcotics agent Iran White to go undercover in Bonds’ gym. It was Novitzky who scoured BALCO’s garbage for evidence of steroids. It was Novitzky who filed the affidavits and served the search warrants on BALCO and Bonds’ trainer, Greg Anderson, that turned up alleged evidence of steroid use by Bonds and other athletes.
Nearly every key question asked of Bonds in the grand jury room can be tied to documents (Bonds claimed to have never seen before) obtained by Novitzky. Many of the documents the prosecutors used that day to prod Bonds about alleged drug use originated from the agent's searches.
The Bonds legal team is expected to mount a court challenge on Novitzky's integrity and motives that could potentially lead to the inadmissibility of key evidence and testimony – shaking the foundation of the high profile perjury case.
“(Novitzky) is their star witness,” said Julia Mezhinsky Jayne, a San Francisco criminal defense attorney who has argued criminal cases before Judge Ilston. “But the government doesn't want this to be a case of Novitzky versus Bonds. The defense is going to work pretty hard to suppress the documents Bonds was presented with at the grand jury. As for the prosecution, the more Novitzky is discredited, the more they have to come up with other evidence.”
Red flags have already been raised on Novitzky in the recent appellate decision. Three district judges and one appellate judge concluded that his conduct violated the Fourth Amendment. Two appellate judges disagreed.
In December 2004, Ilston quashed the subpoenas served on the labs doing the testing for Major League Baseball, ruling that the government’s conduct was unreasonable and constituted harassment.
“I think the government has displayed … a callous disregard for constitutional rights,” she said in open court. “I think it’s a seizure beyond what was authorized by the search warrant, therefore it violates the Fourth Amendment.”
The dissenting Circuit Judge Sidney Thomas noted that Novitzky appeared to have intentionally deceived the court, charging that the agent’s affidavit for a search warrant “did not disclose that a grand jury subpoena had been issued for the same material and that a motion to quash the subpoena was pending in the same district.”
The controversy surrounding the searches of the labs and offices that collected the specimens and performed MLB’s drug testing at the time – Comprehensive Drug Testing (CDT) and Quest Diagnostics – has the potential to become a precedent-setting case on the privacy of medical records and the limits of unreasonable search and seizure under the Fourth Amendment. The recent appellate decision may receive a full hearing of 11 judges in the Ninth Circuit Court, and possibly find its way to the Supreme Court. With or without further appellate proceedings, Novitzky’s conduct is likely to hang over the Bonds perjury trial.
Why have Ilston and so many other judges publicly denounced Novitzky’s conduct? On January 16, 2003, the government served a subpoena on CDT and, “Asked for every drug testing record of every Major League player,” said Elliot Peters, who represents the Players Association in the case. “We said, ‘Oh come on.’ “
After extended negotiations, Peters said the government then asked for 10 names.
"We asked if they’d withdraw the (subpoena for every record of every player)," Peters said. "They never did.”
Peters said the Players Association remained unconvinced that the government had any intention of holding to the reduced list. On April 6, 2004, two days before the union and the testing lab were required to respond to the grand jury subpoena for 10 players or be in contempt, the union told the government it intended to file a motion to quash the subpoenas.
It was filed the next day. On that same day, knowing there would be an early hearing on the government’s right to obtain the testing data, Novitzky and the Justice Department applied for search warrants from federal magistrates to search testing offices and labs in Long Beach and Las Vegas.
On April 8, accompanied by 11 federal agents, including a computer expert, Novitzky raided Comprehensive Drug Testing’s Long Beach office. By noon, Novitzky learned that his fellow agents had “discovered a hard-copy document with names and identifying numbers for all MLB players.” Meanwhile, a distraught lab director handed the agents a document with drug test results for the 10 BALCO players – seemingly what the subpoena had requested.
But Novitzky didn’t stop there. His group copied a massive computer directory called Tracey, containing hundreds of files on CDT’s wide-ranging sports drug testing programs. There were 2,911 files that had nothing to do with MLB drug testing, as well as MLB files that had “information on 1,200 players with multiple test results.”
By boldly raiding the testing lab’s office, Novitzky and the Justice Department defied the ongoing court proceedings, grabbing tests and information they never would have obtained through the still-active subpoena process.
Novitzky’s abrupt search appeared to rob the Players Association of a lawful right to a court defense. Three weeks later, using information that Novitzky had culled from the huge computer directory taken from the testing lab’s offices – never authorized in the original 10-player warrant – the government was granted new search warrants for the approximately 100 players who had tested positive for steroids.
The Players Association sought the return of the specimens and records seized. On August 19, 2004, a district judge in Nevada granted the union's motion, ruling that “the government callously disregarded the affected players’ constitutional rights” and ordered the return of all specimens, notes and memos “other than those pertaining to the 10 BALCO players named in the original search warrant.”
By the late summer and winter of 2004, the fight over the specimens and records of the 100 players wound its way to Judge Ilston’s court, where she demonstrated skill at challenging the government in open argument.
Ilston exposed that Novitzky and the government knew that in the search warrant proceedings – unlike the subpoena process – the objections of the Players Association and other parties would not be heard. Ilston got the BALCO prosecutor to admit that the government had done an end run around another district judge scheduled to hear the motion to quash the subpoena, a hearing that never occurred because of Novitzky's search. The court transcript makes clear that Ilston is not a judge who takes kindly to deceptive argument or conduct – whether on the part of the defense or the prosecution.
In granting the motion for return of seized property, Ilston chastised the government for taking the case “from one judge to another judge,” adding that the government’s unauthorized search will destroy the ability “to confidently provide testing under promise of privacy."
She added that not only would the search irreparably injure Major League Baseball, "I can’t imagine that there’s going to be any voluntary agreement (by the Players Association) to do this kind of testing.”
She also flatly rejected the government’s bald assertion that seizing the nearly 3,000 computer files – nearly 99 percent of which had nothing to do with their original search – was authorized under the plain view doctrine, a legal principle stipulating that officers can seize without a warrant contraband or evidence found in plain view during a lawful observation.
“I find absolutely staggering the implications about what you say about the plain view doctrine in the computer set up," Ilston said. "Nothing is in plain view because with the disk, you look at it, you don’t see anything until you stick it in the computer.”
The new 2-1 appellate opinion did not rule on the plain view question, and went so far as to withdraw its earlier opinion, which directed the magistrate to ensure that the government did not retain, “separate, unrelated evidence.” Under the current ruling the government appears to be able to hold onto all sorts of seized evidence – related or not.
Except that as long as the issue remains tied up in court, the BALCO team has been ordered to return everything, including their notes related to the searches, records and specimens of the 100 players. The deadline for filing a motion for a hearing before an 11-judge Ninth Circuit panel is in early March.
Since the records so far have been sealed, the public doesn't know the extent to which Novitzky’s conduct on those search warrants may become directly relevant in the Bonds case.
But there is also the human factor. “Bias and interest are tremendous ways to impeach a witness,” said Mezhinsky Jayne, the criminal defense lawyer. “The government is going to work hard to diffuse whatever negative statements may come out about Novitzky. They are not ignorant to the fact that he's turning out to not be the best witness.”
If the Bonds case does go to trial, the jury and Judge Ilston are likely to pay rapt attention to the cross examination of Jeff Novitzky.
“He's a zealous guy,” said Peters of the IRS investigator. “All of them. They all went over the line.”