Over the Line? Critics Conflicted on Steroids Crusader

March 1, 2009 — -- The detective and the scientist are hard to miss.

It's Oct. 23, 2003, and IRS special agent Jeff Novitzky stands outside a 10th-floor courtroom in downtown San Francisco. At a lanky 6'7" with a shaved head, he towers over Dr. Don Catlin, the bushy-eyebrowed director of UCLA's Olympic Analytical Lab. The two are continuing a conversation started a year earlier, when Novitzky cold-called the researcher with questions about syringes and drug vials he'd found in a dumpster behind a Bay Area supplement company called Balco.

There is much to talk about. Since that first call, Novitzky gathered enough evidence to haul Barry Bonds, Jason Giambi and another two dozen Balco athletes into the San Francisco courthouse to face questions about steroid use from a federal grand jury. Catlin, whose doping cries have fallen on deaf ears for two decades, is his expert witness.

It's a break in the hearings and Novitzky is making small talk with Catlin in the hallway. He says he's enjoyed a decade working fraud and drug crimes for the IRS. And he talks about how much he loves the quiet life he's carved out in his hometown of Burlingame, 20 miles outside San Francisco. But he never expected his career to turn like this, and now he's rethinking his future.

"Do you think there is anything for me in the anti-doping world?" Novitzky asks Catlin.

The scientist considers the question. All he could do was pass an athlete's urine through his tests and hope to catch a few of the liars and cheats. His new friend could raid homes, tap phones and search through bank accounts. And if you lied to him, he could put you in jail.

"Stay where you are," Catlin answers. "I think you're onto something big."

Catlin couldn't have imagined how right he was -- or where it would all lead. Less than six years later, Novitzky's ongoing investigation has brought down Bonds, Roger Clemens and Alex Rodriguez, the three most important players of their generation. It has imperiled the reign of Commissioner Bud Selig and re-opened his war with Don Fehr and the union. And it's left another 103 major-leaguers who tested positive for steroids in 2003 checking to see if Novitzky will be coming after them, too.

Sometime in the next few months, Jeff Novitzky will walk back into the same 10th floor courtroom, raise his right hand and swear to tell the truth in the case of the United States v. Barry Lamar Bonds. He will say that Bonds lied in that same courthouse five years ago when he told the grand jury he never knowingly took steroids. And then he'll wait for the jury to decide if baseball's home run king was telling the truth.

But no matter what the jury decides -- and face it, most of us have already made up our minds about Bonds -- it is clear that the detective and his gun has replaced the scientist and his test tube. What isn't clear is whether Jeff Novitzky is part of the solution -- or if he's now the bigger part of the problem.

The Unlikely Investigator

There is nothing about Novitzky's life before Balco that suggests a man destined to direct the biggest investigation in sports history. Or one who would crave or abuse power. He grew up the son of a Bay Area hoops coach, a basketball and track star who still owns the San Mateo County high jump record of 7 feet. Coming out of high school in 1985, he tried out for Lute Olson's Arizona University basketball team. When he fell short, Novitzky returned home to play backup forward and teammate to his big brother at San Jose State.

His athletic career over, Novitzky got a degree in accounting and took a job in San Jose with the IRS's criminal division, a select group of agents who use tax laws and their guns to bust up all sorts of criminal operations. He liked that he could pick and choose his assignments and loved that he could remain rooted in nearby Burlingame. He married a nurse, bought a house a block from his parents, spent his spare time coaching his three daughters' soccer teams and playing fantasy sports with high school friends. By age 36, he was a special agent -- top salary $145,000 -- driving a Monte Carlo to the office, and impressing judges and superiors with his attention to detail.

Like most in the Bay Area, Novitzky followed the home run exploits of Bonds, four years his senior, who'd grown up in nearby San Carlos. And like many, he wondered if Bonds' late-career power surge was fueled by steroids. In 2000, he joined the Burlingame gym Bonds used, located right around the corner from Balco. There, he'd watch Bonds work out with Greg Anderson, a trainer affiliated with Balco and usually seen surrounded by a detail of muscled-up bodybuilders.

In 2002, local narcotics agents started hearing about steroid deals at the Burlingame gym and the possible connection to Balco and its owner, Victor Conte. Soon, Novitzky began rummaging through Balco's garbage, turning up enough evidence to convince his bosses to let him find out if the rumors were true. On Sept. 23, 2003, Novitzky led 26 armed agents into Conte's lab as local TV crews -- tipped off to the raid -- looked on. And that day, the sports world changed.

Within months, President Bush was mentioning steroids in his State of the Union address and Novitzky was standing next to attorney general John Ashcroft as he read the 42-count Balco indictment on national television. Almost overnight, Novitzky had clout seemingly beyond his pay grade, able to command resources from federal, state and local agencies. He wrote affidavits for search warrants and grand jury subpoenas, sorted through bank records and e-mail accounts. He criss-crossed the country, questioning suspects, every interview done without the use of a tape recorder -- standard practice for the feds.

He was in the room when Bonds told his story to the grand jury, and there again when Barry was indicted for perjury. He was in the New York courtroom when Marion Jones cried through her confession of steroid use. He sat behind Clemens when the pitcher unraveled before Congress. (For a man who claims to need a low profile to do his job, Novitzky found himself in front of the national media often enough.)

All the while, the buzz grew. Teams of reporters were assigned to follow the investigation. Hordes of attorneys began appearing on TV, defending the many high-profile athletes caught in Novitzky's net -- Tim Montgomery, Jason Giambi, Gary Sheffield, Dana Stubblefield, Shane Mosely. For a federal agent used to working in anonymity, this was unfamiliar territory.

Just how Novitzky's negotiated this new territory is a matter of debate, and sure to be at the heart of the Bonds defense strategy. Catlin and his peers in the anti-doping world call Novitzky a hero, crediting him with pushing the government to enact tougher steroid laws and harsher sentences for those who break them. "Game of Shadows," the bestseller written by the two San Francisco Chronicle writers assigned to the Balco story, casts Novitzky as the good cop determined to bring lawbreakers to justice. The New York Times offered a glowing assessment of his work in a front page profile last November, calling him a later day Elliot Ness and declaring that Novitzky "persuaded people to save themselves by helping him -- without ever raising his voice."

But others haven't always been so sure about him. In June of 2004, Novitzky walked into the office of the Treasury inspector general for tax administration in Oakland, his lawyer by his side. A former member of Novitzky's team, Iran White, had raised questions about the Balco investigation in a May 2004 Playboy magazine article. And there had been a series of leaks to the media about confidential details of the investigation. The IRS watchdogs, an independent agency reporting to the Treasury secretary, needed answers.

Novitzky knew White -- they'd worked together years earlier to bust a computer chip smuggling ring run by the Crips gang. For the Balco investigation, Novitzky asked White to get close to Anderson and wear a wire in hopes the trainer would implicate the Giants slugger. But White suffered a stroke after one grueling weightlifting session with the trainer, ending his operation just before the Balco raid. White later told Playboy that Novitzky had a longstanding vendetta against Bonds and that he talked openly during the investigation about cashing in with a book deal.

Novitzky told the watchdogs that talk of a book deal had been in jest -- though he could see how his words "might have been misconstrued." He told them he had talked to a few reporters but never about the case, and he had no idea why White thought he was out to get Bonds.

The IRS agents had one other matter to discuss. Novitzky had confiscated $66,923 from a locked safe when he raided Anderson's apartment soon after the Balco raid. All of the money had been placed in an IRS safe, then transferred to a bank. Novitzky was one of three agents who had handled the money. Now $600 was missing, and they had to ask him why. Novitzky claimed no knowledge of the missing evidence. Five months later, the IRS issued a report clearing Novitzky of any wrongdoing, with the question of the missing $600 left unanswered.

Then there's Conte. Soon after the Playboy article appeared, Novitzky's report of his raid on Conte's headquarters was leaked to the San Jose Mercury News. In it, Novitzky claims Conte admitted giving steroids to Bonds, a story that all but convicted Bonds in the court of public opinion. Conte denies he ever gave steroids to Bonds, and has accused Novitzky of lying about his confession -- a charge he's filed in court documents under penalty of perjury. Given how hard Novitzky has worked to put people in jail for perjury, it's at least a curious omission that he was never questioned again.

"Novitzky did not tell the truth back when this began," Conte says. "And he is not telling the truth now."

Demanding Test Results

Jeff Novitzky wants results. He's just walked into the Long Beach, Calif., offices of the California Data Testing company, and the place is in chaos. It's April of 2004 and Novitzky is holding a search warrant for the confidential drug test results of 10 Major League Baseball players. And if he doesn't get them, he says, he can shut the place down.

Employees of CDT, the nation's leading sports drug testing company, are confused. The test results are from 2003, the first year baseball and its union had agreed to drug testing. If more than five percent of the players tested positive for steroids, a tougher program would kick in, but no names were ever to be made public.

Now a federal agent was demanding the results. Those in charge at CDT knew the government and the union had been in tug-of-war since November 2003, when baseball announced that 104 players had tested positive. Novitzky had first secured a subpoena for all 1,100 major league players. When the union balked, he got another for the 10 Balco clients.

In the first week of April, the union filed a motion to quash both subpoenas. The government agreed to let the wheels of justice grind on if CDT gave written assurances to protect the records and the urine samples. CDT agreed. But the next day Novitzky drove to Los Angeles, told a judge the evidence was in danger of being destroyed, failed to mention that a hearing was scheduled to quash his subpoenas, and was granted a search warrant for the Balco 10.

Hours later he arrived at CDT with 11 other armed agents. After many calls between lawyers, a CDT supervisor handed Novitzky the 10 results set out in the search warrant. Not good enough, Novitzky said, we want to search your computer system. Before long, a government computer expert was clicking through the entire directory and making copies on disks. When he was done, the government had possession of drug test records of every major league player, a bunch of NFL and NHL players, and workers in three other businesses -- more than 4,000 files in all.

Three district court judges were appalled. One asked if the Fourth Amendment's protection against illegal search and seizure had been repealed. Judge Susan Illston, who's presided over the Balco case from the beginning, called Novitzky's actions a "callous disregard for Constitutional rights." All three instructed Novitzky to return the evidence untouched.

Instead, Novitzky gambled that he'd win an appeal, reviewed the material and saw that he'd cornered the game's best player, Alex Rodriguez. He quickly asked his grand jury for and received a subpoena for the records of the 104 players who tested positive. He would eventually send out one of Bonds' urine samples for further testing.

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.

The Pitfalls of Prosecution

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.

"Heredia put a layer of scum on this prosecution that was never scraped off," Stapleton answered. "I never understood why you brought this case against Graham."

Then there's the night of Aug. 9, when the Giants brought back more than 20 of their outfielders to celebrate the team's 50th season in San Francisco. A late invite was extended to Bonds, who could not find a job in baseball last season, was vacationing in Hawaii, and was not expected to attend. Twenty-four players were announced before Willie Mays walked through the centerfield gate with no introduction.

As the crowd rose, Bonds jogged through a left field gate and joined his godfather on his walk to home plate. An enormous roar went up. Mays soon addressed the crowd, and when he was done, the fans chanted "Barr-ree, Barr-ree" until Bonds took the mike. The stadium went silent as Bonds began to speak.

"It just feels odd to not be in uniform and the Dodgers are right there," said Bonds, pointing into the dugout at the Giants archrival. "I've beat you before, I'll beat you again. I'm not retired."

And the crowd roared again.

Frank Stapleton looked at a track coach he did not know, then a federal agent he found he couldn't trust, and decided the lawman was the bigger problem.

"My biggest regret is that I didn't hold out for not guilty on all three charges," he says now. "I never understood why the man who was dealing drugs wasn't the one on trial."

Next week, 12 people will hear that same agent say the baseball player who thrilled them for nine years is a cheat and a liar. Bonds' defense lawyers will point out that almost every drug dealer involved in this investigation was given immunity to testify against players. Like Stapleton, will they look at the baseball player and the federal agent and decide the lawman is greater of the two evils?

Will Obama Keep Up Govt. Role?

No matter what happens in the Bonds trial, this story will not end here. Not with a grand jury closing in on indicting Roger Clemens. Not with all the skeletons jumping out of A-Rod's closet. And not with the government still holding the names of 103 baseball players who have tested positive for steroids.

All of which saddles the Obama administration with another Bush administration adventure they have to clean up after. It was the Bush Justice Department that has spent more than $50 million on this investigation, and million more giving government a permanent role in policing drugs in sports. But last October, then-candidate Barack Obama told a national radio show that he believed policing steroids in sports was better handled by the leagues, not the government. Novitzky's new boss, Attorney General Eric Holder, said the same thing when he was lead counsel for the NFL in 2007.

Both men, one a former constitutional law professor, the other the head of the Justice Department, are certain to be consulted if there's a decision to be made about putting the CDT case and the identity of those 103 baseball players before the Roberts Supreme Court. At stake is the interpretation of the Fourth Amendment's protection of private records stored in computer databases.

The larger stakes are rarely mentioned in the overheated reaction to famous baseball players and their use of performance-enhancing drugs. The A-Rod bombshell roiled the waters of public opinion once again, and everyone from talk show hosts to former and current Congressmen weighed in on the need to know more. Commissioner Bud Selig and baseball union chief Don Fehr have spent weeks pointing fingers at each other, and Rodriguez was scheduled to talk to baseball's internal investigator on March 1.

But there's a low but steady drumbeat emerging, mostly on political blogs and magazines, asking for a sense of perspective. No one is defending drug use among athletes, but critics contend that even if Novitzky's crusade began as well-intentioned, after seven long years and million of dollars, it has spun out of control. Given the state of the nation, they ask, don't our government officials have more important things to do with their time and our money?

It's a question worth debating.