No quit in Barry Bonds' lawyers
They continue to be relentless in their quest to have him totally exonerated
Lawyers. You gotta love 'em. (The person sitting in this Courtside Seat should know. He is one.) Sometimes, lawyers live up to their reputation. And what, you might ask, is their reputation? Well, a close reading of this column will turn up the following descriptive words: "arrogant," "scorn" and "mindless." Perhaps you can draw some conclusions. Anyway, today we start with
Contempt In Court
Despite a unanimous finding by a San Francisco jury in April that Barry Bonds was guilty of obstruction of justice and an 11-1 vote that he was guilty of perjury, Bonds' legal team apparently still thinks it's winning.
In a curiously righteous and surprisingly arrogant demand that federal district Judge Susan Illston reverse the jury's decision, Bonds' lawyers assert that his grand jury testimony, which led to the felony conviction, was nothing more than "felony prolixity," a harmless "digression," and "a bit of meandering." That's right -- prolixity. It describes an endless and meaningless string of words that leads nowhere. The term was made famous in Joseph Heller's classic "Catch 22" as Yossarian, Heller's protagonist, tried mightily to eliminate prolixity from the letters that he censored during World War II.
The lawyers not only told Judge Illston in court papers filed in mid-June that she must substitute her judgment for the conclusion of the jury, they also told her she must do it in a hurry. It is imperative, they said, that the issue be "resolved as expeditiously as possible."
It's been more than seven years since Bonds offered his story about BALCO and performance-enhancing drugs to the grand jury, and Bonds' lawyers offered no particular reason for their sudden demand for hurry-up decision-making.
Not surprisingly, the judge responded by giving the prosecutors all the time they want to respond to the Bonds demands, and scheduled the case for a hearing late in August. She did not rush to a judgment.
The tone of the defense attorneys' demand for an acquittal is an echo of the scorn they heaped upon the prosecutors and lead federal agent Jeff Novitzky during the April trial. More than once, attorney Cristina Arguedas asked aloud, "Why are we even here?" suggesting that the government should voluntarily dismiss the case.
It is a level of contempt for federal prosecutors and agents and their work that is rarely seen in federal courts. And above that, it came in a case that was a close call only because Bonds's personal trainer, Greg Anderson, for whatever reason, chose not to testify.
It is, of course, obvious that Bonds used steroids and lied about it to the grand jury. If Anderson had been willing to testify about Bonds' use of performance-enhancing drugs, the Bonds legal team would have been begging and pleading for a plea deal.
But now his attorneys continue to make demands, suggesting that Bonds must be acquitted because, according to the court filing, it cannot possibly be a federal crime when a grand jury "witness temporarily gives a truthful but unresponsive answer before directly and fully answering the same question moments later."
For the sake of accuracy, Courtside Seat revisited Bonds' answer to the question. Here is the exact grand jury testimony that led to the conviction and the outrage from Bonds' lawyers:
Q: Did Greg [Anderson] ever give you anything that required a syringe to inject yourself with?
A: I've only had one doctor touch me. And that's my only personal doctor. Greg, like I said, we don't get into each others' personal lives. We're friends, but I don't, we don't sit around and talk baseball, because he knows I don't want -- don't come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we'll be good friends. You come around talking baseball, you go on. I don't talk about his business. You know what I mean?
A: That's what keeps our friendship. You know, I am sorry, but that -- you know that -- I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don't get into other people's business because of my father's situation, you see.
Does Bonds answer the question about use of a syringe? Kathy Hoskins, one of Bonds' personal assistants, told the jury that she saw Anderson inject Bonds in the navel with a dose of human growth hormone. In his grand jury testimony, Bonds obviously did not want to tell the grand jury about it. Did he "obstruct" the grand jury investigation with his rambling about his childhood? Did he "evade" answering a critical question with his statement that he would rather talk about fishing than about baseball?
The law that governs the situation states clearly that you may not "evade" answers to questions, and you may not "obstruct" the investigation. Bonds' lawyers claim that his answers to the questions were harmless rambling. They seem to think it is just a cute bit of repartee. But the jury disagreed, and it was a 12-0 vote.
Illston will decide whether to set aside the jury's conclusion after listening to arguments from both sides on Aug. 26. What will she decide? In most criminal prosecutions in most federal courtrooms, the demand for an acquittal after a jury's conviction would be routinely denied. But Illston's courtroom is not in the category of most federal courtrooms. She has never been happy with the BALCO investigation and might be receptive to the arguments from Bonds' legal team.
But, if she decides to set aside the jury's verdict, she would then face the prospect of a second trial. She might not agree with the jury's finding of guilt, but she certainly does not want to preside over another Bonds trial. It says here she will affirm the jury's finding, and Bonds will be making his righteous demands to a higher court.
The loneliness of the long-distance runner
One of the nation's top high school athletes didn't compete for his school because well, apparently because he's too good.
Good enough to compete in elite, national events.
If it's not our event, the Illinois High School Association told 18-year-old Lukas Verzbicas, then we forbid your participation. Forced to choose between running for Sandburg High in Orland Park, Ill., or competing against the best in national competitions, Verzbicas made the painful but obvious choice. He entered and won a series of major meets, and set national records along the way. Our Jeff MacGregor wrote about one of his races earlier this month.
"The school petitioned the IHSA and made a special request to allow me to run for the school," Verzbicas told ESPN.com in a telephone interview. "But they said they would not allow me to do what I wanted to do, and I decided not to push it any further."
Instead of challenging the IHSA with further appeals or litigation, Verzbicas sent the governing body an unmistakable signal. To avoid any further difficulty, he finished high school in three years, winding up his studies earlier this month to avoid the IHSA and its complex, and occasionally mindless, rules of eligibility.
As he sent his signal to the IHSA, Verzbicas also sent signals to the world that he is someone to watch. In a remarkable two days in March at the New Balance Indoor Nationals, he managed to win the two-mile in 8:40, the mile in 4:10, and the 5,000 meters in 14:06. He ran the mile only about an hour after his triumph in the two-mile.
In the past few weeks, he set a national high school record for the two-mile, shattering the old mark by five seconds with an 8:29.46 in the Prefontaine Classic in Eugene, Ore. Several days earlier, he ran a 3:59.7 mile in the Adidas Grand Prix in New York, becoming the fifth American high school miler to break four minutes.
That's just a sample of what Verzbicas has accomplished as he has rewritten age-group records for distance running. Track cognoscenti compare him with Jim Ryun and Steve Prefontaine, and foresee success at the Olympic level. However, he might not be eligible to compete for the U.S. in the London Olympics in 2012 because his family emigrated from Lithuania 10 years ago. He has a green card and is completing the citizenship process, but there is only a slim chance that the process will finish in time for him to attempt to qualify for the Olympic team next summer.
Despite his success in competition and in the classroom, this model student-athlete was somehow ruled ineligible by the authorities who govern high school sports in Illinois. Is there any reason? Is there any rationale? Is there anything that would justify the IHSA in barring this brilliant, young athlete from its events?
In its mission statement, the organization says its job is to "govern the equitable participation in interscholastic athletics and activities that enrich the educational experience." It's hard to find anything equitable or enriching in the IHSA decisions on Verzbicas.
IHSA officials did not respond to phone messages and e-mails from ESPN.com, seeking comment. Let's hope they're busy rewriting their rules to allow once-in-a-lifetime stars such as Verzbicas to compete for their schools.
Suspension of disbelief
For St. Louis Rams linebacker David Vobora, it was a product worth considering. Ray Lewis, Ed Reed and St. Louis teammate Gary Stills endorsed it, and it was manufactured by a company called "Anti-Steroid Program LLC" with a subsidiary called "Sports with Alternatives to Steroids [SWATS]."
But showing an abundance of caution, Vobora checked with the NFL hotline.
"They actually got back to me twice," he told ESPN Radio 101 in St. Louis. "They said there was nothing in it that would technically trigger a positive test."
But a few days after Vobora used the product known as "Ultimate Sports Spray," he tested positive for a banned steroid (methyltestosterone) and was suspended without pay for four games.
It was a stunning setback for a player who had enjoyed surprising success in the NFL. Vobora was the final choice of the 2008 draft but managed to make the Rams' starting lineup in his rookie season, the first "Mr. Irrelevant" to accomplish that feat in 17 years.
Although there was nothing Vobora could do about the suspension under the NFL's absolute liability rule on steroids, he hired the Gerry Spence law firm in Jackson, Wyo., to investigate. While he served his suspension at the outset of the 2009 season, a lab test showed that Ultimate Sports Spray, in fact, contained the banned steroid.
After he returned to the starting lineup and completed the 2009 season, Vobora and his attorneys asked Anti-Steroid Program LLC for an apology and to remove Ultimate Sports Spray from the market.
"They not only refused to apologize, they looked at the situation as free advertising for their product," attorney Dan Fleck of the Spence firm told ESPN.com. "They thought the publicity would help them sell more."
Vobora and Fleck then filed their lawsuit, charging the supplement maker with intentional misrepresentation, breach of warranty and consumer fraud.
After initially offering resistance to Vobora's claim, the three partners in Anti-Steroid Program LLC turned and ran from the problem. They hired an attorney who filed papers asking that the case be dismissed. But when they didn't pay the lawyer, he eventually withdrew. The judge entered a default against them, and they have refused to respond further to the lawsuit.
According to the partnership's public filings, Mitchell D. Ross, the managing partner, is in Fultondale, Ala. The partnership's registered agent, Samuel A. Persaud, is in Homestead, Fla. And partner William E. Voss is in Key Largo, Fla. None responded to inquiries from ESPN.com.
Yahoo Sports reported on Thursday that a test by the steroid testing pioneer Don Catlin showed no methyltestosterone in the spray, a direct contradiction of the lab test that is the basis for Vobora's judgment against Anti-Steroid Program. With that judgment already entered, Catlin's testing is insignificant to Vobora's case. The only court test of the product found that it contained the banned substance that resulted in Vobora's suspension.
With the partners offering no explanation for their product and refusing to respond to the lawsuit, Vobora and Fleck explained the player's losses to U.S. District Judge Rodney W. Sippel in St. Louis. As part of their evidence, Vobora's agent, Marc Lillibridge, produced some remarkable research showing that the four-game suspension was only the beginning of the difficulties for NFL players who test positive for banned substances.
Lillibridge traced what happened to the nine NFL players who have been suspended for steroid use in the season before their free agency year. Instead of enjoying a typical free agency increase in pay, their salaries, he discovered, dropped precipitously in the contracts they signed after their suspensions. Wide receiver Antonio Bryant, for example, dropped from a $3.5 million salary to a free agency deal for $605,000. Offensive tackle Ryan Tucker dropped from $3.8 million to $1.1 million.
The nine players lost a total of $12.6 million in their free agency contracts, an average loss of $1.4 million per player, according to Lillibridge's research. Since the average NFL free agency deal is four years in duration, it's a theoretical loss of nearly $6 million.
Relying on Lillibridge's number-crunching, Judge Sippel awarded Vobora $3.04 million for the money he will lose when his free agency year arrives in 2012. (The Rams tendered Vobora for the 2011 season at $1.2 million; he made $470,000 in 2010, according to Lillibridge.) Sipple also awarded Vobora $90,588.24 for the four-game suspension and $2 million for general damages. With additional awards for lost marketing opportunities as a successful Mr. Irrelevant, the judge ruled that Anti-Steroid Program LLC must pay Vobora a total of $5.4 million.
Both agent Lillibridge and attorney Fleck vow to pursue the men who made and sold Ultimate Sports Spray.
"We will do whatever it takes," Lillibridge said.
The three partners have filed papers with Florida authorities "dissolving" their partnership, and they told Judge Sippel in a court paper that they are "winding up" their "legal affairs." That might be wishful thinking from partners Ross, Sepaud and Voss.
An NFL linebacker, a resourceful agent and the Gerry Spence law firm are now in hot pursuit of the three partners. Every knock on the door and every phone call could lead to the loss of more than $5 million. The partners might have thought it was cute to market a steroid-laced spray under the banners Anti-Steroid Program LLC and Sports with Alternatives to Steroids, but it could soon turn into a nightmare of liens, garnishments and foreclosures.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
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