Graham case foreshadows Bonds' fate

SAN FRANCISCO – The speedy trial of Trevor Graham, the track coach charged with lying to a federal agent about steroids, went to the jury Tuesday afternoon after just five days – but the price of a conviction may be the credibility of Bay Area Laboratory Co-operative prosecutors and their star investigator, Jeff Novitzky.

Barry Bonds' attorneys may find the trial transcript a rich resource to challenge the integrity and veracity of the former IRS agent who recently joined the FDA. Graham's trial has given the Bonds team a chance to identify weaknesses in the government's courtroom tactics, presentation and witnesses.

Graham is the once anonymous whistleblower who aided the BALCO investigation by sending the U.S. Anti-Doping Agency a syringe laced with THG, an undetectable steroid. He is charged with lying to Novitzky about whether he knew steroids dealer Angel Heredia. If convicted of all three counts, Graham could get 15 years in prison and a $750,000 fine.

By putting on the stand Heredia and an impressive array of athletes, the government appeared to show conclusively that Graham was knee deep in steroids and that he clearly contributed to the performance enhancement of his athletes. In their closing arguments, prosecutors again showed a photograph of the two men together, recounted the 100 calls the defendant made to Heredia's house, and summarized FedEx receipts and lab reports that appeared to establish a far deeper connection than Graham acknowledged to investigators. His attorney didn't even bother to call a single defense witness.

Less clear was why the 44-year-old former coach of Marion Jones was only charged for lying about his relationship with Heredia, and why Novitzky might have been less than truthful to Graham and the jury.

Prosecutor Jeffrey Finigan told the jury it was a simple case. "It's about fundamentals we learn as children," he said. "When federal agents come to speak with you, there's really only one rule. You tell the truth."

But that argument appeared hypocritical a few minutes later when Finigan acknowledged that every one of the government's witnesses was untruthful to federal agents when first questioned about their involvement with steroids – and only corrected their lies when given a second chance, an opportunity never given to Graham.

And defense attorney Bill Keane asked how simple the case could be if it took the government two hours to make its final argument. He added that a second rule was critical when federal agents speak to someone, then charge the person with lying. "Those statements have to be material."

The lies have to matter to criminal investigations, and Keane argued that there was no proof his client stymied the cases against BALCO and Jones. The government never charged Graham for lying about BALCO.

Finigan took the jury through witness testimony and evidence. He replayed the Heredia wiretaps of Graham, and then asserted that Graham was complicit when he replied "Yeah," or "Yeah, Yeah," to the drug dealer's attempts at entrapment.

Finigan reframed the context of the interview with Novitzky and another IRS agent. "(Graham) knew exactly why they were coming. … He was not caught off guard. His lies were a calculated effort to lead the investigators away from him."

Keane moved the podium closer to the jury before beginning his shorter, more animated closing. He suggested the government was less than straight with his client.

"You've heard Agent Novitzky testify that (before the interview) he wanted to talk (to Graham) about BALCO and Victor Conte," said Keane of the interview that stands at the heart of the indictment. "Nothing was mentioned about … Angel Heredia."

The Graham defense's line of inquiry into the fairness and integrity of the BALCO team may have parallels to the Bonds case.

Just as Keane went on to suggest Novitzky appeared to be laying a trap for the track coach, Bonds' attorneys have suggested that BALCO prosecutors promised Bonds – like most athletes testifying before the grand jury – that he would be able to see much of the evidence against him in advance of his testimony, yet reneged at the last minute.

Keane then noted that Novitzky made no recording, no audio and no transcription of the interview. He added, "This is a case based on notes."

Keane recounted that under oath Novitzky told the jury he didn't know Heredia's name before the interview – testimony clearly shown to be inaccurate. Novitzky's former partner, IRS agent Erwin Rogers, testified both men knew the name before the interview. "You learned that was wrong," Keane said.

But on rebuttal, prosecutor Matthew Parrella said, "Whether or not the agents knew his name is irrelevant. Whether or not they gave his name to the defendant is irrelevant."

Novitzky appeared irritated in the courtroom, glancing away from the jury as Keane spoke, busily taking notes on a pad. Did the agent make simple mistakes? Was he just forgetful? Or was it evidence of a more insidious pattern that could bear fruit for other defense attorneys trying to shake his tree?

The Bonds team was likely also taking notes – the courtroom crowded with media, lawyers and law students. Whether Graham is convicted or goes free is not their main concern. What they – and the public – learned during the trial is that the government's official truth seeker in history's longest running performance-enhancement purge, Novitzky, may ultimately find his statements, credibility and honesty on trial.