At the very moment that Lance Armstrong's former teammates have been testifying before a Los Angeles grand jury, clues to where the cycling champion may be headed are being revealed in government preparations for the trial of Barry Bonds.
Pre-trial filings last week in USA v. Barry Bonds foreshadow not only next March's highly anticipated San Francisco trial of the former slugger but also what may await Armstrong.
Lesson #1: It's Not About Real Crimes.
When it comes to athletes and performance enhancement, lead investigator Jeff Novitzky and federal prosecutors have proved they don't need a real crime to convict an athlete. The government has long made it clear in BALCO and the trial of Barry Bonds that it can be infinitely flexible in creating crimes for athletes that it believes have stretched the rules of fair play. Bonds has been charged with the rare crime of perjury, and the government will likely have to be even more elastic with Armstrong. The latest theory floating about is that the rider and potentially team officials will somehow be charged with an elaborate fraud.
Lesson #2: There Are No Rules In This Game.
Friday's witness list in the Bonds trial was a reminder to Armstrong that the government can make up the rules as it goes along. Prosecutors have tried for years to force Greg Anderson, Bonds' former trainer, to testify against his old client. When Anderson refused to testify to the BALCO grand jury prosecutors asked a judge to toss him in jail -- three times for a total of a year. When that strong-arm tactic failed, they arranged for a SWAT team of IRS and FBI agents to raid Anderson's mother-in-law on a trumped up charge that was a blatant attempt to squeeze the trainer. Next they appealed the trial judge's ruling that alleged steroid tests were inadmissible without Anderson's testimony.
This past week prosecutors stubbornly announced, without any new legal theory, that they can introduce the same alleged steroid tests that Judge Illston and a higher court has ruled inadmissible. They also declared that Anderson must be found in contempt and jailed again if he maintains his silence. These heavy-handed tactics may backfire, as Judges rarely issue a second finding of contempt. But the message to Armstrong is loud and clear: When it comes to superstar athletes, some federal prosecutors will stop at nothing to force witnesses to testify.
Lesson #3: Your Teammates Will Talk
The main purpose of the Barry Bonds BALCO grand jury, as in the Armstrong grand jury, has been to pressure fellow teammates to implicate the targets of the investigation. The government has announced that it will call several of Bonds' former teammates to the witness stand, as well as the one time New York Yankees star, Jason Giambi. The object, as in the Armstrong investigation, is to show a pattern of drug use. But general talk and convicting Bonds or Armstrong of real and specific crimes in court are two different things. The government has named only one athlete, Bobby Estalella, who has allegedly testified that Bonds talked in some way about taking steroids.
As with Armstrong, there appears to be no witness who saw it with their own eyes. And the teammates' testimony may be a double-edged sword. Giambi, and his brother, for instance, said repeatedly under oath that they didn't think the drug they were taking, "The Clear" was a steroid -- a perfect defense for Bonds. Not only that, but hidden in the still secret grand jury testimony is ample evidence that prosecutors knew all along that "The Clear" was not an illegal drug or even a steroid under federal law.
Lesson #4: Humiliation is The Goal.
Taxpayer funded exposes of legendary athletes suspected of breaking the rules of their sport are less about justice and more about what these federal prosecutors have asserted to be what they call, "the public interest."
What they seem to be after is total humiliation. Major League Baseball did not even bother to dish out penalties for steroid use in 2003 -- the year when the government believes Bonds lied. At Bonds' trial, the government plans to call his former girlfriend, Kimberly Bell, to testify that he told her he was on the juice and that she knew it was true because of changes she saw in his body and sex. It's far from certain that her crass analysis of Bonds' male anatomy (already made public by prosecutors in the court file) will make it into the courtroom, and whether it will do anything but turn jurors against the government. There's also the sleaze factor. Before Bell sold her story to prosecutors she sold it to Playboy -- along with photos of her in the nude. But that's not the point. The government seems determined to humiliate Bonds, and Armstrong should expect nothing less than a full on brawl.
Lesson # 5: This Can Take Years.
This is likely to be the longest and toughest race of Armstrong's life. The Bonds case stems from his testimony before the San Francisco Grand Jury back during the first term of George W. Bush in December of 2003. The all-time home run king won't be tried until March of 2011 -- a multi-million-dollar, seven-year effort in the making. It has been rumored that Armstrong will likely be indicted this January, but pretrial moves could easily delay his trial to 2012 or 2013.
Lesson #6: Jurors Hate Liars
Witness lists provided by the prosecutors and Bonds' attorneys this past week only tell a part of the story. Trials are dramas, and the defense said it has held back on full disclosure to avoid tipping off prosecutors to "weaknesses in the government's case." Come March 21 two men will be on trial -- Bonds and the man who built the case against him, Agent Jeff Novitzky, the same man spearheading the Armstrong investigation.
The government plans to try Bonds for lying, but what's interesting is that Novitzky himself has increasingly emerged as a controversial figure. His flagrant violation of the 4th Amendment while illegally seizing over a hundred 2003 MLB test results was condemned by the Bonds trial judge, and last month again by the 9th Circuit Court of Appeals. Government attempts to introduce Bonds' rumored positive test results from that illegal search may not succeed.
Then there are the potential wild card witnesses. Three fellow agents have accused Novitzky of misconduct in BALCO, and Bonds' defense team has met with all three and taken their statements. Meanwhile, Bonds' attorneys may attempt to call Mike Rains to the stand, the lawyer who represented the slugger before the grand jury. Court papers suggest that Rains would testify that the prosecutors lied to Bonds in laying an elaborate perjury trap, itself a serious violation of federal law, described in a key underlying case as, "a concept in itself abhorrent."
Beyond the rules of sport there are the larger principles of fairness and justice under American law. How the testimony of these and other witnesses ultimately play out in the Bonds trial and Armstrong investigation remains to be seen. Everybody shades the truth.
But there's nothing a juror hates more than a government witness who lies.