Shockingly, a three-judge California appeals court ruled 2-1 in favor of the government, saying Novitzky was free to pursue those who tested positive. But the full court took the case and is expected to make it ruling by next fall. The case had floated under the radar for years until four sources broke the law and leaked A-Rod result to Sports Illustrated. An angry public now wants to know the identity of the other 103 players, but it could be a long wait as this appears to be a Fourth Amendment test case destined to go to the Supreme Court.
That is, unless someone breaks the law again and leaks more names.
For almost six years, Jeff Novitzky has insisted that Barry Bonds broke the law when he told a grand jury he never knowingly took steroids. Key to his case is Greg Anderson, Bond's boyhood friend who has refused to testify against the former slugger. Anderson pleaded guilty in 2005 to giving steroids to several other Giants and accepted a plea deal of three months jail time. He says he was told he would not have to cooperate with the ongoing investigation.
The prosecution disagrees, and put him behind bars for 13 months for refusing to testify against Bonds. They also opened up financial investigations into his wife and mother-in-law to pressure him to change his mind. The tug-of-war continued last week when Anderson again refused to testify. That meant alledged positive drug tests for Bonds under Anderson's care would not be admitted as evidence, leading the prosecution to appeal that ruling and forcing a delay in the much-anticipated trial.
The government is fighting hard for that evidence because gaining a perjury conviction is always an uphill battle. Two dramas this past summer may give some insight into how 12 men and women from the Bay Area will look at Bonds and Novitzky.
The first came last May at the perjury trial of Trevor Graham, the former coach of the now disgraced Marion Jones. Graham had done as much as anyone to bring down Balco when he gave authorities a syringe containing traces of Balco's designer steroid in June of 2003. Catlin soon decoded the substance, dooming Conte's stable of athletes.
But Graham was charged with lying to Novitzky about his knowledge of a Mexican steroid dealer named Angel Heredia. "His lies slowed down Agent Novitzky's pursuit of Marion Jones for perjury," the prosecutor told the jury in his opening statement. Heredia became the government's star witness, but he unraveled on the stand. He was evasive when asked if he continued to deal steroids even after agreeing to cooperate with Novitzky. He said he was granted immunity, and then says he wasn't. On several occasions he changed his story on the spot.
"I can't be expected to remember everything that happened so many years ago," he told the jury.
Heredia's performance led one juror to find Graham not guilty on two of the three counts, giving Novitzky a tainted victory. After the trial, Novitzky waited outside the jury room to find out why. The first to emerge was Frank Stapleton, whom Novitzky recognized as the attentive small business owner from Oakland who had been named jury foreman.
As Novitzky approached the foreman, Stapleton held up his hand. "Before you says anything," Stapleton said, "I just want to tell you I was the one who voted for acquittal."
"Mind if I ask you why?" Novitzky said.