This week we learned more about how Agent Jeff Novitzky, the man behind the steroids case against Barry Bonds, broke the law.
Bonds has long been accused of taking steroids to achieve greatness on the field of play. Now the United States Court of Appeals in the Ninth Circuit has definitively ruled that Bonds' main antagonist also let the ends justify the means.
Agent Jeff Novitzky, the crusader who has spent nearly a decade working to put Bonds behind bars for allegedly lying about steroids, has been found to have grossly violated the 4th Amendment, prohibiting unlawful searches and seizures, in a landmark case on the dangers of an overzealous investigator.
This week the court upheld earlier rulings that Novitzky illegally seized the computer records of roughly a hundred Major League players in 2004.
The prosecution against BALCO and Barry Bonds has always been argued on a moral and ethical plane. The President of the United States weighed in during his 2004 State of the Union Address about how steroids in sports "sends the wrong message -- that there are shortcuts to accomplishment."
True enough, but from the beginning there was something unusually strident and atypical about the attempt by the IRS and other federal agencies to criminalize the use of sports performance drugs.
In 2002 Novitzky was an unknown IRS agent with no experience in leading drug investigations when he began rooting around in Victor Conte's BALCO garbage. Novitzky never obtained a warrant and told a grand jury that he saw no need to do so as the garbage was on public property.
By the summer and fall of 2003, veteran drug agents themselves raised questions about the obsessed investigator. Two agents working on the case knew Novitzky "hated" Bonds, and heard him brag about his hopes to cash in on a book deal. The agents demanded to see copies of his reports and were rebuffed by federal officials.
Novitzky, however, was given carte blanche by the head of the IRS to drop the normal duties of an IRS agent -- investigating tax fraud and money laundering -- and became our de facto national sports doping czar.
The September 2003 search of BALCO and Greg Anderson foreshadowed something was amiss. Television stations had been tipped off to both raids, putting local undercover drug agents at risk.
As the grand jury got underway in the fall of 2003, federal investigators also began investigating Jeff Novitzky and fellow IRS agents. The first secret inquiry related to $600 that had been stolen during the search of the apartment of Bonds' trainer, Greg Anderson. The second involved Novitzky statements about wanting a book deal and his naming supposed targets of the investigation. The government never proved who stole the money, and never bothered to follow up on the other allegations.
But the 2004 search of Major League baseball testing records was fully investigated, and found to be a blatant trespass of Fourth Amendment rights against unlawful search and seizure by multiple district courts and two opinions of the Ninth Circuit of the Court of Appeals.
Novitzky only had a warrant for ten records, but as the court of appeals opinion states, "When the warrant was executed, however, the government seized and promptly reviewed the drug testing records for hundreds of players in Major League Baseball (and a great many other people)."
That wasn't the only violation. Once Novitzky had the illegally seized larger database, he then concocted a "list" of baseball players who had allegedly failed baseballs' anonymous testing in 2003. That list was then leaked to the media, revealing the names of Alex Rodriguez, Manny Ramirez, David Ortiz, Sammy Sosa and others.
The leaks kept sports doping in the news, adding to Novitzky's growing fame. Now with the FDA, Novitzky has become the key investigator in two other high-flying celebrity sports doping inquiries, that of Roger Clemens and Lance Armstrong.
The Novitzky saga is certain to become a model of how not to do a computer search for tens of thousands of federal, state and local agents and police. The court appended to its ruling strict new guidelines on future seizures of computerized evidence, writing: "Government intrusions into large private databases thus have the potential to expose exceedingly sensitive information about countless individuals not implicated in any criminal activity, who might not even know that the information about them has been seized and thus can do nothing to protect their privacy."
Whether or not the Supreme Court decides to hear the case, it is certain to become a central opinion on search and seizure law, and to be taught in police academies and law schools for years to come.
As to Barry Bonds, it is hard to say whether this is the end of Agent Novitzky's hunt. Repeated attempts to pressure the trainer Greg Anderson to testify about three alleged steroid tests of Bonds have failed. Though Anderson has spent a year in jail he has been unwavering in his refusal to cooperate with the government. In January of 2009, IRS agents led a raid against Anderson's mother-in-law in a crude attempt to force the former trainer to testify against Bonds. Prosecutors then appealed Judge Illston's court ruling barring evidence of the alleged steroid tests of Bonds without Anderson's testimony.
This June BALCO prosecutors lost that appeal in a 2-1 decision. This week, they have been ordered to return the illegally gathered evidence from the 2004 search.
Those are two very big strikes. The government backed out on the eve of the first Barry Bonds trial in early 2009. The Barry Bonds perjury trial is set for March 21, 2011, with Jeff Novitzky as the star witness for the prosecution.
Don't hold your breath.