Bonds case may be trouble for Clemens
Perjury case against former pitcher said to be stronger because of his outright denial
SAN FRANCISCO -- With the Barry Bonds trial finally nearing an end, Jeff Novitzky, the most famous special agent in the history of the FDA, has a few things left on his to-do list.
He is leading a federal investigation of Lance Armstrong, and it was Novitzky's BALCO work that led to Roger Clemens' appearance before Congress in 2008, the appearance that landed him a six-count indictment for perjury and obstruction of justice.
Bonds' trial has been seen as a practice run for those cases, and Joe Roden, a member of the Clemens defense team, was in the courtroom for much of Bonds' trial.
Armstrong has not been charged with a crime, although sources have indicated that he could face indictment sometime this summer on fraud charges related to alleged doping while he was the U.S. Postal Service cycling team.
Clemens, however, is scheduled to begin trial July 6 in Washington, D.C.
And if the Bonds trial is any indication, Clemens could be headed for trouble.
"Clemens' situation is the same as Bonds', but on an increase of 10," said Peter Keane, a professor and dean emeritus at the Golden Gate University School of Law who has followed the BALCO case closely. "With Clemens, it's lying before Congress, not some rinky-dink grand jury in San Francisco."
The Bonds jury on Wednesday failed to reach a verdict on three of the four counts it was considering but convicted him on a broader charge of obstructing justice. Jurors said it was his consistently evasive answers before the grand jury that convinced them he was guilty.
But Keane and other experts note major differences in the cases.
"The case against Clemens is way better than the case against Bonds," said one federal prosecutor familiar with both cases. "And the case against Bonds [was] pretty good."
One notable difference is their respective testimonies.
Bonds, subpoenaed as a witness in the BALCO investigation, never denied using performance-enhancers and testified that whatever he took was done without his knowledge. Some jurors said the government provided neither sufficient evidence nor credible witnesses to prove Bonds knew that he had doped, leading to the deadlock on the three counts of making false statements.
Clemens, on the other hand, left no room for doubt in his testimony; he said he never used performance-enhancers, even without his knowledge, period. "Let me be clear," he testified. "I have never taken steroids or HGH."
Unlike Bonds, Clemens wasn't even required to testify. Two members of the House Government Reform and Oversight committee, Republican Tom Davis and Democrat Elijah Cummings, said they told Clemens he was not required to testify before them as they held hearings about the Mitchell report. They said he insisted on appearing, and under oath.
Bonds also had the benefit of a determined friend. He owes the three deadlocked counts in large part to his former trainer, Greg Anderson, who spent a total of 14 months in prison rather than testify against his friend before the grand jury or in court during the past several weeks. Without Anderson on the stand, the government was forbidden from using much of the physical evidence it had collected against Bonds.
Without Anderson's testimony that calendars, logs and drug tests were related to Bonds, U.S. District Judge Susan Illston ruled that the evidence was hearsay.
Clemens, on the other hand, sat a few feet from Anderson when he testified before Congress. Brian McNamee, Clemens' former trainer and friend, has been a cooperative witness for the government and already testified that Clemens used performance-enhancing drugs despite blistering attacks from Republican members of the House committee.
"With Clemens and Bonds there's a certain amount of, "'This is a swaggering big shot,' and people like when swaggering big shots get taken down," Keane said. "With Clemens you have the same kind of character involved in terms of his ego."
Keane also points out that Bonds was convicted in the city where he played for 14 seasons and was revered by fans. Clemens will be on foreign turf in Washington, with a jury pool drawn from an area where he never played and has no natural fan base.
But Brian Hershman, a former assistant U.S. attorney in Los Angeles, said it's hard to know when jurors will let a defendant's celebrity status affect their decisions.
"I would have thought way back when that there's no way you could convict [Bonds] in San Francisco," Hershman said. "People are enamored with celebrities and athletes, and historically they tend to give them breaks. Finding 12 people that are willing to knock [Clemens] off his pedestal is going to be very difficult. Clemens is such a nationally known figure, he'll still have the star factor going for him."
In every BALCO-related case, back to the original prosecution of the men who ran the performance-enhancing-drug-trafficking operation, the defense team has gone after Novitzky and his methods. He has been called obsessed and selective by multiple defense attorneys, but Keane says that if the Clemens and Armstrong teams hope to make points by attacking him, the Bonds trial showed that they've picked the wrong target.
"The original defense strategy was, well, let's use Novitzky as the Achilles' heel, that he's some sort of real zealot," Keane said. "But Novitzky is a solid witness. When he testifies, they don't lay a glove on him in cross-examination. He's perfectly prepared, he's unflappable, he knows what to answer. He is a terrific witness for the government."
The jurors who spoke after the Bonds trial did not mention any qualms they had with Novitzky, who spoke calmly and directly to them during his testimony as the case's first witness.
With Armstrong, Keane and Hershman said there are few lessons to be drawn from Bonds. The case the government appears to be building against the seven-time Tour de France winner is seeking to establish that he helped oversee a conspiracy to dope.
Although Bonds and Clemens have their admirers, neither is considered as likable as Armstrong, who has helped to raise millions of dollars for cancer research.
"And on top of that, he's a guy overcoming cancer. As a prosecutor, I wouldn't want to touch that with a 10-foot pole," Hershman said. "You'd better have a rock-solid case."
T.J. Quinn is a reporter in ESPN's investigative and enterprise unit. He can be reached at firstname.lastname@example.org.