Daily Archives: August 27, 2009

Investigate Novitzky and the Prosecutors in the BALCO Major League Baseball Investigation

Baseball players who are accused of or admitted to the use of steroids and other alleged performance enhancing drugs prior to their being banned by baseball have been demonized by the Federal Government and media.  I do not agree with taking them, but at the age of 49 and still having to complete regular physical fitness tests and physical conditioning I wouldn’t mind if someone prescribed me some HGH.  I’ve got enough nagging injuries that hurt that I have to take a couple of pain medications on a regular basis anyway.  If someone offered me the chance to do more than get pain relief I would jump at it.  Major League Ball players get dinged up a lot over the course of Spring Training, a 162 game season and up to a month of post season play.  They also are dependant of their physical condition to make their living.  Likewise our society as a whole has become a nation addicted to enhancing performance.  It is pervasive and not merely isolated to professional sports, especially not baseball.

Over the past 10 years certain people who have no legal oversight to baseball such as IRS investigator Jeff Novitzky have engaged in a gross abuse of governmental power.  In his investigation he has either been permitted or encouraged by the prosecutors of Barry Bonds to break the law.  The prosecutors acted either out of omission by turning a blind eye to Novitzky’s conduct or out of commission by cooperating with him.  Not only has this been shown now repeatedly as court after court has thrown out evidence or dismissed charges against Novitzky’s chief target Barry Bonds.  Yesterday the 9th Circuit Court ruled that Novitzky’s investigative team illegally seized thousands of records without probable cause.  Chief Judge Alex Kozinski stated “This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause.”  Since February leak after leak of names from a list of 104 players who allegedly tested positive on a screening that was only to be used to see how pervasive the use of steroids was in baseball with the understanding that the list would not be made public and in fact would be destroyed.  The leaks obviously are coming from investigators who are the only people with access to the records who have motive to leak information.  The act of prosecutors or investigators leaking the documents that are sealed is illegal.  The consistent leaking to various reporters has    Former U.S. Attorney and chief of the criminal division for the Southern District of California Charles La Bella said: “The information shouldn’t have been seized. People have been unfairly tainted by something the courts have ruled should never have been made public.”

Novitzky, his team and superiors had a warrant to get information on 10 individuals.  They knowingly exceeded their authority without probably cause and seized thousands of records. They then allowed information the courts had to be made public.  What did they find besides the records at BALCO? Under $2000 worth of illegal performance enhancing substances, nothing more suggesting a widespread manufacture or distribution of them.

The apparent collaboration of Novitzky with BALCO prosecutors Jeff Nedrow and Matthew Parrella has tainted the case against Bonds or anyone else whose names have been leaked.  I have to say apparent because there is no proof to this point that Novitzky is the leaker but the evidence based on what he has done so far in breaking the law in regard to the seizure of evidence makes it a reasonable supposition.

The judge in the Bonds case, Susan Illston was openly skeptical of Novitzky’s conduct, saying in open court: “I think the government has displayed … a callous disregard for constitutional rights. I think it’s a seizure beyond what was authorized by the search warrant, therefore it violates the Fourth Amendment.”  Ninth Circuit Chief Judge Kozinski wrote  of Novitzky’s conduct: “The record reflects no forensic lab analysis, no defusing of booby traps, no decryption…Rather, the case agent immediately rooted out information pertaining to all professional baseball players and used it to generate additional warrants and subpoenas to advance the investigation.”

Such conduct by government agents is a moral and legal quantum leap above the actions allegedly committed by Bonds or others.  Their actions may have hurt baseball, but that is for baseball to judge, not the government.  With the House and Senate hearings in which current and former players have been hauled before the committees with television cameras rolling while Congressmen and Senators pontificate making scripted statements in which the players are condemned without actual charges being filed or convicted of any crime.  The Congressional committees have become kangaroo courts where men are held accountable to standards that their accusers are not even accountable to.

I know about out of control investigators.  I have had first hand dealings with men who think that they can bully people and use the law to bring themselves professional accomplishment and personal gain at the expense of people who they have no probable cause to investigate.  When I was an Army Company Commander in Germany in the mid-1980s I had to deal with a unit that had the highest drug positive rate in Europe.  I was told to “clean up that company” by the Group Commander when I took command.  The prosecutor became a friend, at the same time I abided by the laws and regulations governing drug testing as well as choosing the appropriate level to deal with the offense.  However, I was also tested and even more often than my soldiers.  Because of the drug positive rate the CID took an interest in my unit.  Two agents came to my office one day and asked me if I would allow them to place a CID agent in the unit undercover not to deal with the drug problem, but to “investigate suspicions of unit personnel engaging in the black market sale of American cigarettes on the economy to Germany nationals.”  I became suspicious of them.  I asked if they had probable cause or evidence that any of my soldiers were engaged in this activity.  They said they had no proof, evidence or even probable cause, only that black marketing of cigarette was a problem and that they needed to place an agent in order to get the proof.  With them in the room I called my prosecutor buddy and told him what they were asking and he told me that if it was his company that he would make them show probable cause and do an open investigation.  That confirmed my gut feelings about the matter and I thanked him and hung up the phone. I then looked at the agents, told them to give me probable cause and that I would consider it.  I was accused at that point by one of them of covering up criminal activity and that he would get me too.  I simply told them to get out of my office and out of my building and that they wanted to accuse me of a crime to go ahead.  I ever saw them again.  I presume that they tried this because I was a pretty junior First Lieutenant up to my ears in disciplinary problems and agree to what they wanted.  I knew if I did this that that I would destroy any confidence that was being build in the chain of command, destroy the cohesion that I was working hard to build following the relief of the previous commanding officer and subject my soldiers to an inquisition that would destroy my company.

How many journalists or politicians are tested for performance enhancing drugs in their professions?  Would not the public responsibility of both journalists and elected Congressmen, Senators and for that matter non-military or law enforcement government employees actually be more important to society as to whether a baseball player took something to heal from an injury faster or be better at his game?  It is hypocritical for journalists or politicians to hold these men to standards that they themselves are not accountable to.  When those journalists or politicians then embolden out of control investigators and prosecutors who courts have ruled violated the Constitution in their illegal actions, the nation they say that is okay for the government to violate the law and citizens Constitutional rights.

That is the bigger issue than if baseball has a steroids problem, or had a steroids problem before it began its testing system.  Add to this the staggering costs of the Bonds investigation alone, $55 million as of January 2009 plus the monetary costs of the Congressional hearings.   One also is forced to ask what Congress could have been doing with the time, money and effort spent on the hearings.  Are there not more pressing issues to deal with and is this not a warped sense of public service? Should Congress even be worried about this with two ongoing wars, ongoing terrorist threats, and an economic crisis, a political divide that has moved from opposition to pure hatred and a potential H1N1 Flu pandemic on the horizon?  Where are the priorities for these people? Let baseball police itself. It has a testing program now; the allegations are all things that happened 6-15 years ago when the standards were not even clear.

It is time for this to stop.  The prosecutors and Novitzky and anyone else working on this case suspected of misconduct should be investigated and if they have violated the law they should be charged and tried as any other person would be.  It is my view that all of this now is not being done to benefit baseball, but to enhance the careers of men who believe that they are both morally superior and think themselves above the law.  All investigations of ball players that are based on accusations and evidence before Major League Baseball banned specific performance enhancing drugs and supplements substances should be ended now.  It is a miscarriage of justice.

Now if baseball wants to ban players from the game or not elect them to the hall of fame, that is a matter for baseball to decide, not that of Congress and certainly not that of Jeff Novitzkty or anyone else who have disgraced their offices by their utter disregard of the law and the Constitutional rights of American citizens.

Peace, Steve+

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Filed under Baseball, philosophy, state government agencies