Tag Archives: jeff novitzky

One, Two, Three Strikes You’re Out: Federal Prosecutors blow the game in Clemens Mistrial

Roger Clemens leaves the Courtroom after the Mistrial- Photo Jonathan Ernst/REUTERS

First it was the lengthy and painful investigation and trial of Barry Bonds where Federal Prosecutors came up short on their primary charges. Today it was the rapid mistrial called by Judge Reggie Walton as the prosecutors opened their case against Roger Clemens on the first day of Clemens trial.  To me they looked like the prosecutors thatAlanShore(James Spader) made fools of in the television series Boston Legal.  This was supposed to be a “slam dunk” for the government and instead it was a debacle.

Assistant US Attorney Steven Dunham opens his case -Dana Verkouteren / Associated Press

 Today lead prosecutor and assistant U.S. attorney Steven Dunham went against the Judge Walton’s ruling by introducing evidence of former Clemens team mate and friend Andy Petitte’s wife that Petit had told her that Clemens had admitted using HGH. Walton had already deemed the video admissible in rebuttal. Instead Dunham introduced it invoking Walton’s ire and lead defense attorney Rusty Hardin asked for a mistrial.

Rusty Hardin argues for the Defense-Dana Verkouteren / Associated Press

Walton granted the mistrial even though prosecutors argued that the judge could simply instruct the jury to disregard the evidence.  Judge Walton remarked “I don’t see how I un-ring the bell,” in that they could not know the effect of the evidence in jury deliberations.  Walton noted that “Government counsel should have been more cautious,” noting the cost to taxpayers already incurred and that “I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence.” A direct comment that the prosecution’s case hinged on the testimony of and evidence supplied by former Clemens trainer Brian McNamee.

Counsel Approach the Bench Judge Reggie Walton takes control and declares a mistrial-Dana Verkouteren / Associated Press

The government considered Pettitte’s testimony essential because he is viewed as “critical witness” because of his honesty and good reputation.  This was even more important after Wednesday’s opening arguments where Hardin managed to turn the trial into one of the reliability of the prosecution and its key witness, McNamee.

That happened after Dunham on Wednesday morning showed a capped needle, a syringe and three cotton balls which the prosecution said contained steroid residue and Clemens’ DNA. It seemed to be a strong start, but then Dunham was warned about the testimony of Petitte’s wife.  Then he elected to reenact Clemens’ Congressional testimony using an FBI agent and a former Congressional staffer leading a columnist to write “by mid-afternoon the jury had to despise Dunham.”

Hardin on the other hand held the jury in his hand weaving a trail of government investigators canvassing the country to find evidence with which to convict Clemens and only having McNamee’s testimony with which to attempt to send Clemens to prison.  Hardin put the prosecutors and McNamee on trial showing a map of 72 locations across the country where the government went to prepare 229 investigative reports.  Hardin pushed the prosecution hard and gave the jury a lot to think about regarding the evidence and the reliability of their chief witness.  I think that this is most likely why Dunham introduced the Pettitte video most likely hoping to make an impact on the jury while having Walton simply let them off with a warning.

The play didn’t work. It was like a pitcher having been warned for throwing at a batter doing it a second time and getting tossed from the game. However in this case with wasn’t just the pitcher tossed it was the end of the game.

Judge Walton: “I don’t like making orders and lawyers not abiding by them. This clearly runs afoul of my pre-trial rulings.” AP Photo

Judge Walton has scheduled a new hearing for September 2nd to determine if there will even be a second trial.  Given Walton’s statements today one has to seriously believe that he will not order a new trial. A gag order imposed by Walton is still in force and it is believed that Walton considers that a case of double jeopardy exists and that Clemens may be immune from further prosecution. If there is a second trial it probably will not take place until 2012.

In the end it is another case of over eager government investigators and prosecutors spending millions of taxpayer dollars to target high profile athletes.  The fact is that for baseball the Steroid Era is over.  It is likely that hundreds of players took varieties of performance enhancing drugs.  The evidence of this is the marked decline in home runs and run production as well as injuries to older players that were less frequent than during the era.

As for those implicated as users they will be judged by the fans, their fellow players and the sportswriters who vote players into the Hall of Fame.  Those innocent will be under as much scrutiny as those that have admitted or actually tested positive.  Those that used whether they ever tested positive or not cheated, but cheating  in sports is something that is not the job of government to police or Congress to investigate.  Those that love the game of baseball will view records set during the era with suspicion because that is what baseball fans and writers do. We examine statistics and records; we live and die by them.  But the fact is that baseball records are often products of their times.  There were few home runs in the “dead ball era.” Many of the great home run hitters played in hitters parks and were surrounded by a strong supporting cast that forced pitchers to pitch to them.  Many players that held records played in a shorter season, 154 vice the current 162.  The National League doesn’t play the Designated Hitter which has extended the careers of many hitters whose defensive skills are declining to the point that they are a liability in the field and would have had to retire in previous times.  From their inception until last year players used amphetamines to increase their alertness.  That was legal and baseball did nothing about it until last year.  In days past pitchers used the spitball, cut or sanded balls to get an edge.This was illegal but many did it and Hall of Famer Gaylord Perry admitted this even before being elected to the Hall of Fame.

What I have never thought right was Congress calling hearings and grilling ball players while the country was at war and suffering from a terrible economic downturn.  That was a waste of time and taxpayer money.  The one good thing is that it forced Baseball to get its act together regarding PED use, testing and enforcement.  I am glad for that.

As far as the prosecutions they have been terrible a waste of taxpayer money and the results bear that out.  It is time to end this mindless pursuit, let the players live their lives in retirement and let the fans, writers and their colleagues judge them.

Rusty Hardin and Clemens after the Trial Photo- Mark Wilson, Getty Images

As Clemens left the courtroom he was hounded by reporters and photographers, some even trying to get his autograph he had to push his way through like someone trying to escape a Zombie attack. As he did so an inebriated man waving a cane shouted “Leave the man alone! Leave the man alone!”  Maybe it is time that we do, not only with Clemens, but Bonds and all the others that Federal investigators, notably Jeff Novitzky and prosecutors have investigated for years on our dime.

“Leave the man alone!” I second that.

Peace

Padre Steve+

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Cheating in Baseball: The Case of Barry Bonds and it’s Relationship to Modern America

Barry Bonds was convicted of one count of Obstruction of Justice in his trial on perjury charges. The obstruction count came as a result of Bonds’ 2003 Grand Jury testimony.  The three perjury charges were deadlocked and the judge has the option of retrying them.  Bonds’ defense team asked for the verdict to be set aside and the judge did not immediately rule on the request.  The Bonds legal saga is not over as a decision to retry the deadlocked perjury charges, the judge acting on the defense motion to set aside the guilty verdict and the outcome sentencing and any appeals are still to come.

Meanwhile the steroids era just will not go away as Roger Clemons is soon to stand trial for lying to Congress about his alleged steroid use and Manny Ramirez ended his already tarnished career with yet another positive steroid sample.  Ramirez should have known better. He was on the list of 103 players that tested positive in 2003 and he was suspended for 50 games last year for a positive test while playing on the Los Angeles Dodgers.  The fact that he was caught once again suggests that he was either incredibly arrogant or stupid or possibly both.

Unfortunately they are not alone. In fact 6 of the top 14 home run leaders (in italics) of all time are tainted by steroids only one of whom is still active.  Jim Thome who is also active has not been implicated in the steroids scandals but will still likely be scrutinized simply because he hit a lot of home runs during the era.  The sad thing is that the use of steroids according to some was so prevalent that almost anyone who set records during the era tainted or not will be viewed with suspicion.  As for Bonds people made up their minds about him years ago and there is little middle ground when it comes to him. The only thing now is how baseball will deal with the records of Bonds and the other players of the steroid era and admit him or any of them into the Hall of Fame.

1              Barry Bonds           762

2              Hank Aaron            755

3              Babe Ruth               714

4              Willie Mays             660

5              Ken Griffey, Jr.      630

6              Alex Rodriguez      617

7              Sammy Sosa          609

8              Jim Thome              590

9              Frank Robinson     586

10           Mark McGwire      583

11           Harmon Killebrew 573

12           Rafael Palmeiro                    569

13           Reggie Jackson      563

14           Manny Ramírez                    555

Now some like Palmeiro went and shook their fingers at Congress and then popped positive, not smart but so many others could very well have done steroids that have not been caught that we will never know.  There are numerous reports which implicate others most of whom will never be prosecuted or banned from baseball.  But thanks to IRS Special Agent Jeff Novitsky who transferred to the FDA to pursue elite athletes Bonds, Clemons and other legends of various sports have been singled out for prosecution in what amounts to a witch hunt designed to bring down the biggest names in sports.  In the case of Bonds this has cost the taxpayer over 50 million dollars.  In an era of massive deficits is this a good way to spend our money to get a guilty verdict on just one charge after almost 8 years of work?  To me it seems that Novitsky and his team have made a special effort including violating court prescribed limitations of search and seizure at the BALCO labs and to ensure that the case was tried in the media before Bonds ever went to court.  Do the math: 1 player, 8 years, 50 million dollars and 1 guilty verdict on one count of 5 that went to trial and 4 that went to the jury.

That being said I believe that Bonds knowingly took steroids as did so many of the players of his era and though Bonds has not admitted anything I imagine that he started to take steroids because of the wild success of those that were taking such as Mark McGuire and Sammy Sosa neither of who had all of the natural talent and ability of Bonds who was on course to be a Hall of Famer before he started using.  I wish that he had admitted that he did back in 2003 it probably would have done much to help end the era as well as put others on notice and it is likely that instead of being ever in our face the Steroid era would be in the past.  The conviction even on the one count of obstruction says much in how he is perceived in court and in public. While Bonds has many supporters he also has many detractors.

I think as does Bob Costas that Bonds should be elected to the Hall of Fame, not on the first ballot for sure because unlike McGuire and Sosa he was heading to hall of fame well before his numbers became inflated after the 1997 season.  Despite the fact that steroids undoubtedly had some impact there were many others that took steroids and still couldn’t hit, many that couldn’t get out of the minor leagues. To quote Minnesota Twins outfielder Shannon Stewart who was interviewed by Minneapolis Star Tribune sports writer Paul Reusse:

“The truth is, there were so many guys taking steroids for a few years, and they couldn’t hit like Barry Bonds. In my opinion, a guy hitting with a corked bat is taking a bigger advantage than someone who was on steroids….If Bonds was doing all of this … you still have to hit the ball. He still was going to hit 40 or 50 (each season), with or without steroids.”

Zach Moore compiled an interesting and enlightening portrait of Bonds’ performance before he began allegedly using steroids in 1998. I post it here with the link because with or without steroids Bonds would have made the Hall of Fame based on his pre-1998 statistics.  True he may not have topped Aaron or Ruth in Home Runs but the numbers and the company they put him in are impressive.

“Bonds’ stats prior to the 1998 season include a .288 batting average, a .408 on-base percentage, and a .551 slugging percentage. He had 1,750 hits, which included 321 doubles, 56 triples, and 374 round trippers. He drove in 1,094 runs, while crossing the plate 1,244 times himself.

He did all that while also walking 1,227 times. Bonds was not only a threat at the plate, but once he got on base, he stole 417 times. He did all this while only striking out 958 times.

In The New Bill James Historical Baseball Abstract, which was written just before the 2001 season during which Bonds hit 73 home runs, he calls Bonds “the most un-appreciated superstar of his lifetime.” That is one reason for Bonds’ desire to use steroids, according to Mark Fainaru-Wada and Lance Williams in Game of Shadows.

In the section of the Abstract where James ranks his 100 best players at each position of all time, James ranks Bonds the third best left fielder ever, only behind Ted Williams and Stan Musial.

James also calls Bonds “probably the second- or third-best hitter among the 100 listed left fielders (behind Williams and perhaps Musial), probably the third-best baserunner (behind Henderson and Raines), probably the best defensive left fielder. Griffey has always been more popular, but Bonds has been a far, far greater player.”

The astounding part about this is that James wrote this before Ken Griffey Jr. started getting hurt, so he could still vividly remember Griffey gliding around centerfield, robbing home runs, stealing bases, and that beautiful swing.

On the next page, James then went on to list his 10 best players of the 1990s; Bonds leads that list, with Craig Biggio of the Houston Astros coming in second, the 10th player on that list is Greg Maddux. I say this because James goes on to say, “the No. 2 man, Biggio, is closer in value to the No. 10 man than he is to Bonds.”

We tend to forget how good Bonds was, even before he went on this steroid-aided home run tear of recent years sometimes.

I can’t compare his 12-year career statistics with any one player because his ability to do everything does not allow that. Instead, I’ll use a few different Hall of Famers to nail home the point.

His .288 average is higher than both Rickey Henderson’s .282 and Carl Yastrzemski’s .285.

He hit 101 fewer home runs then Stan Musial in about eight less seasons and also hit 13 more home runs than Joltin’ Joe DiMaggio.

His on-base percentage was one point lower then Manny Ramirez’s current .409 career mark, and it tied Jackie Robinson’s career OBP.

Listen carefully to this next statistic, with his 12-year all-natural career, Bonds’ career slugging percentage of .551 would be eight points lower than Musial’s, six points lower than his godfather Willie Mays’, five points lower than Mickey Mantle’s, and only three points lower than Hammerin’ Hank Aaron’s.

Bonds had 15 less career runs scored than HOF centerfielder Duke Snider.

He finished with 29 less hits than HOF infielder Lou Boudreau.

Kirby Puckett’s 1,085 RBIs were nine less than Bonds’ sum. His 321 doubles tied Yogi Berra’s.

Bonds’ 1,227 base on balls are still more than future Hall of Famers Ken Griffey Jr., Chipper Jones, and Manny Ramirez’s current totals. He even had more than walk machine Jason Giambi, and he did it in only 12 seasons.

Bonds’ 417 stolen bases put him in the top 65 all-time.

Another testament to his incredible combination of speed and power is that he is one of only four players in the 40/40 Club (home runs and steals). He actually did it during 1996 when he was clean.

The other three members of that club are fellow abuser Jose Canseco who did it in 1988, Alex Rodriguez who did it in 1998 when he was still with the Mariners, and Alfonso Soriano who did it in 2006.

After only 12 seasons in the Major Leagues, Barry Bonds was unquestionably a first-ballot Hall of Famer.”  http://bleacherreport.com/articles/40505-were-barry-bonds-and-roger-clemens-hall-of-famers-before-steroids

Additionally Bonds before 1998 was a 7 time Gold Glove winner, 3 time MVP and 6 time Silver Slugger Award winner. For a complete list of Bonds accolades see the Baseball Almanac page at http://www.baseball-almanac.com/players/awards.php?p=bondsba01  Even after he was alleged to use steroids he won the 2004 Hank Aaron Award, the 2004 Most Valuable Player Award, 2004 Players Choice Outstanding Player of the Year Award, 2004 Players Choice Player of the Year Award, 2004 National League Silver Slugger Award and 2004 Sporting News Major League Player of the Year Award.  In a sense despite a widespread suspicion that he was using steroids the players and media recognized him as the best in the game. Then they didn’t seem very concerned about the possibility that he might have cheated. Now many in the media who made their money promoting Bonds condemn him as do many fans that have since abandoned him.  To me it is hypocritical.  Yes I think that he cheated but that takes little away from his pre-steroid accomplishments.

Because of the alleged steroid use and the subsequent investigation, trial and conviction he will be remembered as a cheater. However morally he is no different than all the players of the Steroid eras who abused PEDs but who were nowhere close to his skills and performance.  Bonds was certainly was an amazing player. His overall numbers would very well be lower without steroids especially the home runs, but he very well may have been the greatest overall player since his Godfather Willie Mays even without them.  Not many players can say that.

Bonds biggest problem was that he displayed a sense of arrogance toward the game and the law, the same arrogance that made him such a fearsome hitter even before steroids. The same is true with Roger Clemons, quite probably the greatest pitcher of the modern era. Like Bonds before him Clemons’ refusal to deal with the issue of his alleged steroid use forthrightly before Congress; will likely end in some kind of criminal conviction and Clemons in his first 14 seasons was certainly a Hall of Famer. I won’t go into his statistics here but they are also covered in Zack Moore’s article.

Are there men that cheated in the Hall of Fame? Yes one of the most flagrant being Gaylord Perry who admitted after his retirement and before his election to the Hall of Fame that he threw the “spit ball” which was illegal his entire career.  Players who “corked” bats were common but most were never caught because unlike today their bats were never inspected.  Pitchers used the spit ball, emery boards, diamond rings and sandpaper to alter the baseball to give it extra movement.  Since all ballplayers are human beings I have no doubt that had the technology to produce PEDs been available between the end of the Dead Ball era in 1919 and the late 1980s when they arrived on the scene that players would have abused them in order to increase their performance, win games and extend their careers.  Likewise they would have been cheered as much as the home run leaders of the 1990s were until they were exposed.  All one has to do is take a look at those who are known to have cheated as documented in this ESPN article http://espn.go.com/page2/s/list/cheaters/ballplayers.html  a number of whom are in the Hall of Fame.

My contention in this article is not that Bonds did not cheat the evidence certainly looks like he used steroids which were banned when he allegedly started using. Instead I would say that Bonds has been unfairly singled out by people in the government, the media and even in the game that would rather tear down a man than to place his actions in the broader context of the game, the era, human nature and history.  This will happens to Clemons too but not many others.

Meanwhile the government bails out financial institutions and industries that have defrauded the American public and helped impoverish the nation. We excuse the illegal and unethical lives of politicians and Presidential Candidates so long as they our on our side of the politic spectrum or failing that against the party that we oppose and we give churches and clergy who harm innocents a pass and say that the accusers are persecuting the Church. We worship celebrity and idolize people with talent or looks but not much else but we will do our best to destroy athletes who break the rules of their game.  Isn’t that somewhat hypocritical.

To put things in context I am 51 years old and coming up on 30 years in the military between the Army and Navy. In order to get the highest category of score on my Physical Fitness Test I have to perform at almost the same level as I did as a young Army enlisted man, ROTC Cadet and Officer. Likewise I have to meet almost identical height, weight and body fat standards.  On the physical side I can still outperform many young men 20-30 years younger than me. I deal with nagging injuries to my knees, shoulders and have a very fragile ankle that I have sprained or broken so many times that it is not even funny.  I suffer chronic pain. If someone had a way other than Icy Hot and 800mg Motrin to ease the pain and help my performance I cannot say that I wouldn’t take it, I probably wouldn’t break the law if it was illegal to use but if it wasn’t illegal but merely questionable I might use it.  I have another 5-7 years left before I expect to retire and like Mickey Mantle said “I always loved the game, but when my legs weren’t hurting it was a lot easier to love.”

Peace

Padre Steve+

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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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Manny, A-Rod and Barry: How the Media and Government Selectively Target Ballplayers or Don’t

I love baseball as a game.  The Deity herself speaks to me through baseball.  While baseball to use the words of George Will is “Heaven’s gift to mortals” it is played, managed and judged by fallen humanity…thanks so much Adam and Eve, you should have gone to the concession stand in the Garden of Eden and got a hot dog and beer and left that that tree that you were told not to touch alone. As  the New Baseball Edition of the Bible says: “And God spoke to Adam and Eve saying “Thou mayest eat and drink freely from any concession stand, vendor or restaurant in the park, but thou shalt not eat from the Tree of the Knowlege of Good and Evil, lest you die or otherwise blow the game.”    It is my opinion that baseball’s problems can be traced to the failure of the first couple to get this one little thing right.

As a result of the fall we can be assured that while baseball is the chosen sport of the Deity who “in the Big Inning created the heavens and the earth” it will not be perfect in this world.  This is readily apparent in the past 7 or 8 years or so of the baseball steroid scandal.  There is much blame to go around in this whole sordid affair from the commissioner’s office, to owners, the MLB Players union President Donald Fehr and the players themselves who blocked efforts to initiate tough and fair drug testing managed by them and the league.

Because of the league and players inability to police themselves they opened themselves to machinations of congressional committees led often by congressmen who have to assert their dominance in every aspect of American life.  I actually found the inquisitional hearings led by Representative Henry Waxman to be a disgusting overreach of government power directed by people who couldn’t get picked to play on a little league team. The unbridled jealousy of career politicians who haven’t worked a real job in years toward the highly successful athletes was displayed as they dragged player after player before their committee.  Congressmen asked them leading questions about the use of substances that were not always illegal setting them up for eventual prosecution of lying to Congress because like in the case of Bonds they gave ambiguous answers to the questions.  Now I am not saying that the players were without blame, many set themselves up for this by blatantly looking guilty if they were not guilty of anything.  The league and player’s union policies and response did nothing to help the matter and now we sit with what seems to be a never ending circus which harms the game.

My beef with many of those involved is that they do not respect the game.  This goes for players, owners, union officials, media, politicians and investigators.  This disrespect for the game has reached epic proportions as the hubris of all concerned reached incredible heights.  While I could go on and on about this I am going for now focus on the inequitable treatment of the accused players by the media and government which I believe is glaringly apparent in the treatment given to Barry Bonds as opposed to players such as Alex Rodriguez and Manny Ramirez.

Baseball purists are perhaps the most religious of fans.  We don’t like it when people mess with the game.  The game itself is sacred, thus when players, owners, union people, media or the government do things that we perceive to hurt the game we get just a tad bit upset.  Football, Basketball and Hockey players, owners and officials can just about get away with murder and not only remain in the game but become or remain stars who eventually reach their respective Hall of Fame.  Baseball on the other hand will take the person who has committed an infraction and like the ancient Israelites cast heavy stones upon their reputation and memory to the seventh generation.  Baseball can be a very unforgiving game.  The diamond is “holy ground” and the game is to be respected by players, owners, media, government and fans alike.   This has not been the case in regard to steroids and other performance enhancing substances including their use by players, toleration by owners and “fishing expedition” investigations by Federal agents and Congress.

This being said in the past six years there has been an inequitable treatment of players accused or proven to have taken banned or illegal performance enhancing drugs or supplements.  When Congress, the media and a then relatively unknown IRS investigator named Jeff Novitzky.  One of the best commentators on the way that the Bonds investigation and prosecution has been handled, Jonathon Littman notes that the “Clear” that Bonds was accused of using was not illegal at the time that he allegedly used it, but also was not classified as a steroid.  Littman notes that

“Experts say prosecutors might have intentionally asked Bonds what they knew to be ambiguous questions – never defining steroids or making a distinction between drugs that were illegal or merely banned by many major sports.”

“This case has been presented as Barry Bonds lying about steroids,” said Christopher Cannon, a San Francisco defense attorney with extensive experience in federal perjury cases. “The government’s theory is that he was taking the Clear. If the government knows the Clear wasn’t a steroid – then when Barry said he wasn’t taking a steroid, he was telling the truth.”

Likewise the manner in which Novitzky has led the government investigation leads on to wonder what the motivation is for the prosecution.  There was very little money involved in the BALCO case, those accused or convicted have received very minor penalties, but the investigation which has spanned years has cost the government 55 million dollars.  As Littman writes:

“The paucity of illegal profits and drugs raises the question whether prosecutors realized that the only potential for criminalizing the behavior of athletes who took banned substances was to set perjury traps or bait athletes into lying to the grand jury or to a federal agent.

“It sounds like a misuse of the grand jury,” said John Bartko, a former assistant U.S. Attorney in San Francisco who has tried perjury cases. “They go and try to trip the guy into lying.””

Now Bonds may not be the most sympathetic character, but he does deserve to be treated as innocent until proven guilty.  Instead the prosecutors and some in the media have gone out of their way to destroy any chance of Bonds either playing again ever reaching the Hall of Fame.  He is called a cheater in an era when it is likely that that a large number of players were doing the same thing, without penalty.  It seems to me that Bonds has been singled out while others are left alone.

This is nowhere nearly apparent than with the recent admission by Alex Rodriguez that he took steroids, after having previously denied it and the positive test and 50 game suspension of Manny Ramirez for the use of a banned substance, a suspension that Ramirez just completed.  A-Rod seems to have weathered his admission and I see no one coming after him while Ramirez’s return punctuated every other game during the day.  Neither man received the abuse heaped upon Bonds and they have admitted or actually tested positive for the use of steroids or banned substances.

Having had to administer drug tests as a Army Company Commander I know that the burden of proof is on the prosecutor.  The manner of testing and the chain of custody must be impeccable, otherwise allegations are just that and you cannot, unless you want to look like a fool and attempt to prosecute under Article 15 proceedings or Courts-Martial without unimpeachable evidence that a person took a substance known to be illegal at the time it was used, not something that was made illegal after the fact.  The Bonds prosecution looks to me like a gross misuse of the Grand-Jury system and government power to make an example of Barry Bonds.  If Bonds had been a mediocre player or not hold the records for the all time home runs and single season home runs he would not be a target.

Having said all of this the entire steroid era, especially the actions of the baseball owners, commissioner and players union sullied the game and opened the door to political opportunists like Waxman and investigators who use questionable and likely unethical and maybe even illegal means in order to trip up as suspect, as Novitzky appears to me to have done.  Baseball must police itself and both players and owners must subscribe to a fair and clearly defined drug policy that leaves no room for misinterpretation.  Maybe they should look to military rules of evidence for such a program which apply to all players equally with both random tests throughout the season which would ensure that every player was tested as well as periodic sweeps of the entire league.

In the case of Bonds and those whose real or alleged crimes now date back six or more years it is time to stop the madness.  It is a waste of taxpayer money to continue this sham puritanical inquisition against Bonds while so many others are given a pass.  Bonds name and reputation have been destroyed and he has never been convicted of a crime by prosecutors who continually have their evidence thrown out and indictments overturned by judges.

If you want to read more by Littman and his reporting of this go to: http://sports.yahoo.com/mlb/news?slug=li-novitzkythomas031909&prov=yhoo&type=lgns

As far as A-Rod and Manny, they are not going to the All-Star game this year as baseball fans are tired of this kind of behavior.  If owners and players will not police themselves those of us who love and respect the game will ensure that they are accorded no honors.

Peace, Steve+

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