SAN FRANCISCO – Prosecutors in the long-running Bay Area Laboratory Co-operative probe suffered their first major setback Thursday when a jury failed to deliver a verdict on the two most substantive counts against track coach Trevor Graham, finding him guilty of only a single count.
The jury determined that Graham lied about his last phone contact with performance-enhancement drug dealer Angel Heredia, but the judge declared a mistrial on counts pertaining to whether Graham lied when he said “he never set up any of his athletes” with drugs obtained from Heredia, and whether he never met Heredia in person. Those charges were the heart of the case. The vote was 10-2 to convict on the drug-related charge and 11-1 on whether Graham had met Heredia.
That surprising finding may throw a wrench into the government’s wide-ranging steroids-related investigations and prosecutions. Graham is the latest conviction in a probe that already has resulted in the convictions or guilty pleas of Olympic gold medal-winning sprinter Marion Jones, NFL player Dana Stubblefield, cyclist Tammy Thomas and others. BALCO also prompted the indictment of baseball's all-time home run king Barry Bonds for lying to a grand jury about steroids and a current investigation into former standout pitcher Roger Clemens for allegedly lying to a congressional committee.
But far from gaining momentum going into the highly anticipated Bonds perjury trial, the mixed verdict on Graham illustrated the difficulty of trying cases about lying to federal agents and grand juries as if they were drug cases – and basing those prosecutions on the testimony of dubious witnesses.
Under the single count, Graham faces a maximum of 5 years in prison. Because he doesn't have a criminal history, he likely faces only a sentence of six months to one year. A sentencing hearing is set for September 5.
The government could move to retry on the deadlocked counts and the defense will ask the judge to overrule the guilty verdict based on insufficient evidence.
The verdict suggested some jurors were troubled by the credibility of Heredia, who admitted on the witness stand that he still might be dealing drugs.
“The government was bound and determined to make an example of the defendant,” said jury foreman Frank Stapleton in a typed, prepared statement he handed to the media after the verdict. “To achieve their goal they felt it necessary to do a deal with a true devil, an untruthful drug dealer and illegal immigrant who is walking the streets of America, free and presumably still plying his trade with impunity.”
The Graham trial exposed the danger of the BALCO prosecutors' reliance on drug dealers, circumstantial evidence and the testimony of FDA agent Jeff Novitzky, the lead BALCO investigator.
The trial may serve as a roadmap on how Bonds’ high-priced legal team might attack a government case based on lying about banned drugs.
During the day and a half of deliberations, questions from the jury to the judge about the definition of “materiality” suggested a broader government problem.
Attorney Bill Keane successfully focused his defense of the track coach on whether the statements allegedly made to the IRS impeded the agency’s investigation of BALCO and Marion Jones.
Said Stapleton, who was the lone holdout on one count and one of two on another: “If you take it as a whole – materiality – and in the second count (whether Graham had met Heredia in person once) we had to verify if it was deliberate and willful. I had a hard time with that.”
Keane was the first defense attorney in a BALCO trial to pierce the armor of the previously impregnable Novitzky, who also is the lead investigator in the Bonds and Clemens cases.
During his cross-examination of Novitzky, Keane demonstrated the agent was less than credible about whether he knew Heredia’s real name before the June 8, 2004, interview with Graham.
In his closing, Keane took the tact of not taking Novitzky’s potentially misleading testimony head on. Instead, he focused on how Novitzky told Graham and his attorney that he wanted to interview him about BALCO and Victor Conte – yet spent just a few minutes of a three-hour interview asking about a man he identified only by a nickname. Keane gave Novitzky the benefit of the doubt – not directly accusing him of lying.
“Then you have to ask yourself, how important is it?," Keane said during his closing argument Tuesday. "How important is it if agent Novitzky had forgotten (Heredia’s) name two hours later?”
Keane concluded: “I suggest the evidence points to one thing. Heredia was not an important, material part of this investigation. Nothing about this interview suggests it was material.”
Keane showed no such subtlety with Heredia. He put up a giant poster of the FedEx labels Heredia had testified were in his handwriting and clearly were not.
“Let’s talk about Mr. Heredia’s testimony," Keane said to the jury. "Sure as the sky was blue when you woke up this morning, he was lying to your face when he said this was his handwriting.”
Stapleton and other jurors said they discounted much of the drug dealer’s testimony.
The surprise mixed verdict had Novitzky shaking his head and prosecutors Matthew Parrella and Jeffrey Finigan unwilling to look at the jury. Finigan even asked Judge Susan Illston that the jury continue deliberating – a request she denied.
On June 6, the same prosecutors will be back in court in front of the same judge for a status hearing on the Bonds case.