SAN FRANCISCO – The Barry Bonds trial remains on hold pending a government appeal, but a court battle Friday will focus on whether agent Jeff Novitzky compromised his credibility in the overzealous pursuit of the former slugger.
In a hearing on a motion to set aside the perjury conviction of former cyclist Tammy Thomas, the government is expected to argue that prosecuting drug distributors – not shaming celebrated athletes – was the primary goal of the seven-year BALCO probe.
Novitzky, the lead investigator in the long-running Bay Area Laboratory Co-Operative case and a crucial figure in the ongoing grand jury investigation of former pitcher Roger Clemens, will be front and center in the debate.
The Thomas motion for a new trial came about after a court hearing in the Bonds case. In an article seven weeks ago, Yahoo! Sports revealed the existence of a secret investigation of Novitzky and other IRS agents by a federal watchdog agency. Two days later, attorneys for Bonds demanded the government turn over the report of the investigation, conducted by the Treasury Inspector General for Tax Administration (TIGTA). The government complied, and Ethan Balogh, the attorney for Thomas, also was provided with a copy.
Balogh filed a motion for a new trial, contending that the government had withheld exculpatory evidence that could have been used at Thomas' trial to impeach the credibility of Novitzky, the prosecution's star witness.
Lead BALCO prosecutors Jeff Nedrow and Matthew Parrella opposed the new trial and dismissal of the indictment in a court filing last week. The prosecutors argued that Balogh should have known the contents of the full 145-page report because he had been provided a summary before Thomas' April 2008 trial. Nothing in the larger report "contradicts Agent Novitzky's trial testimony," they wrote "or establishes that the purpose of the investigation was to 'target' athletes."
The government has pinned a large portion of its argument on the premise that the charges against Novitzky are without merit. To that end they made a false accusation about me in the court filing, suggesting that I triggered the TIGTA investigation into Novitzky by lodging a complaint.
The government is mistaken. I never contacted TIGTA, and in fact wasn't even aware of the agency's existence at the time. During the course of reporting an article for Playboy on the BALCO case in February 2004, I left a telephone message with IRS public information officer Mark Lessler to give Novitzky an opportunity to comment. TIGTA makes it clear in its report that Lessler turned over my voicemail to the agency.
There also appears to be a contradiction between what Novitzky told his fellow agents and his Thomas trial testimony. Balogh wrote that Novitzky testified that BALCO "was not about investigating athletes, and the government argued vigorously in closing argument that this case had nothing to do with unmasking cheating in sport or shaming athletes."
In the Playboy story, I described a May 2003 meeting involving Novitzky, undercover agent Iran White and a handful of other agents that suggested Novitzky was keenly interested in focusing on athletes: "According to White, Novitzky names Bonds, Jason Giambi and other major leaguers as targets of the investigation. … Prosecutor Nedrow sets the tone. 'Gentleman, this case is going to have to be done by the numbers,' he says. 'With all of the attorneys and the athletes, everything and everybody will be under scrutiny.' "
My sources were three of the five people in the room – White, who had worked on cases with Novitzky for years, and two drug task force agents who requested anonymity.
The record of what was said in front of Nedrow – undisputed by the government – appears to have created a problem for prosecutors. Prominent government officials, including former Attorney General John Ashcroft, have consistently maintained that the purpose of BALCO was to jail distributors of illegal drugs – not to shame athletes.
Judge Susan Illston will decide whether the issue of targeting Bonds is material to Thomas' motion for a new trial. Arguments may include whether Novitzky was truthful during his trial testimony and in a declaration he made four years ago when he denied interest in participating in a book.
In June 2004, Novitzky acknowledged to TIGTA investigators that after agent White returned from working out at Bonds' Burlingame gym, he had talked in front of White and other agents about writing a book about BALCO. But Novitzky insisted he was joking.
A few months later, Novitzky filed a declaration under penalty of perjury in Illston's court that appeared to contradict his statement to TIGTA. He stated "that he had never had a discussion about getting a book deal with anyone."
In its motion last week, the government cited Webster's definition of the word "discussion" in arguing that Novitzky had been "honest" in his testimony before Illston.
"These are not contradictory statements," argued the prosecutors. "Joking references are not discussions."