Grimsley case is a legal cautionary tale

Updated: June 9, 2006, 11:44 AM ET
By Roger Cossack | ESPN.com

The search earlier this week of former Arizona Diamondbacks pitcher Jason Grimsley's home in Scottsdale, Ariz., provides some answers about human growth hormone and Major League Baseball, and should produce further information as news breaks about what the authorities found.

We now know that the feds are still looking into the distribution and use of steroids in baseball. We thought perhaps we'd reached the end of prosecutions connected to the original BALCO investigation when Patrick Arnold, the chemist who supplied the BALCO lab with the substance known as "the clear," pled guilty to one count of conspiracy in late April. But it's apparent that the cases of the five principals (including sentences for founder Victor Conte, personal trainer Greg Anderson, executive James Valente and track coach Remi Korchemny; Arnold still faces sentencing) might just have been the beginning of what appears to be a continuing, vigorous investigation.

On April 19, IRS agent Jeff Novitsky, the same agent who was involved in the BALCO investigation, served an anticipatory search warrant on Grimsley at his home. Agents are able to get anticipatory warrants when they know that something criminal is going to happen. They must be able to convince a judge that evidence of the crime will be gone if they ask for the warrant after the event occurs.

In this matter, Novitsky knew that a package containing human growth hormone, illegal to possess without a valid prescription, would be delivered to Grimsley's home on a certain date and at a certain time. After reviewing the information, the judge issued a search warrant that allowed Novitsky to search Grimsley's home once the package was delivered.

We don't know how Novitsky knew what was in the package, how he knew when it was to be delivered and if he knew who sent it. But we do know that Novitsky was much more interested in getting information from Grimsley than he was in arresting him, or even searching his home.

When Grimsley was confronted with the warrant that day, he allegedly agreed to cooperate, and turned over the package. At the time, then, the house wasn't searched.

One of the interesting elements alleged in the search warrant affidavit is that during Grimsley's early cooperation with the feds after the investigators confronted him on April 19, the pitcher agreed to make a recorded phone call to his supplier of HGH. And Grimsley's lawyer told the Arizona Republic late Wednesday that one of the reasons Grimsley quit cooperating a week is that they wanted him to wear a wire to get evidence against Barry Bonds.

Is it legal for the feds to do that? The short answer is yes.

I'm certain that Grimsley's lawyer would have told him that once he quit cooperating with the feds, he might be subject to arrest for possession of an illegal substance and that he likely would have to deal with baseball's penalties. Grimsley chose to face those penalties rather than continue to cooperate and give up his friends in baseball.

If the story about the wire is true, it highlights the intensity of the government's current investigation into whether Bonds lied to the original BALCO grand jury about his own involvement with performance-enhancing drugs.

Armed with his search warrant, Novitzky knocked on Grimsley's door on April 19 and gave him two options. Grimsley could either tell Novitsky everything he knew, or he could have his home thoroughly searched by the several agents who were there. He chose the former.

During the debriefing, Grimsley named names of a number of other players he believes had used steroids, confirmed that the co-drug of choice among baseball players is amphetamines, and claimed that the suppliers of these "greenies" are mostly Latin players.

However, a week or so after that initial two-hour interview, Grimsley had the change of heart about continuing to cooperate. He hired a lawyer, who informed the agents that Grimsley would no longer talk with them. Apparently, the loss of Grimsley's cooperation resulted in the second warrant being served on Tuesday by more than a dozen agents who searched his home for several hours.

However, anything Grimsley already had told the agents would be admissible in court and could be used against him if he is prosecuted for possession of an illegal substance. Simply hiring a lawyer fails to make any of those earlier statements disappear, unless Grimsley claims he was coerced into making them and would have refused to speak to the agents but for the pressure that was put on him.

That would be a difficult argument for Grimsley to win. According to Novitzky's affidavit, no agent forced him to talk, or threatened him or his family. Grimsley was simply given an unpleasant choice on April 19: We know what you have inside the house, so you can either talk with us now or we will search your home.

I'm certain that Grimsley knew baseball's drug policy, and knew that he could be arrested. But simply having to choose between two undesirable options won't help a claim of coercion, should Grimsley attempt to make it.

The full search of Grimsley's home this Tuesday was the feds' way of saying they know how to play hardball, too. Once Grimsley hired a lawyer and quit cooperating, the agents had no reason to continue to go easy on him.

Among the items to be seized listed in the search warrant affidavit, in addition to the drugs themselves, is paperwork such as checks and phone bills that might provide evidence against Grimsley. But the investigators could have obtained some of those documents and some of that information from his bank or the phone company.

So the search sends a message to every other ballplayer who comes in contact with the feds. The message is this: We still are investigating the use of steroids in baseball. You can help us or not. Here is what happens if you do, and here is what happens if you do not.

Roger Cossack is ESPN's legal analyst.