Even as he waits for the Justice Department to ferret out the source of leaks in the BALCO steroids scandal, the lawyer for Barry Bonds claims to have what he calls “fairly compelling evidence” that the source is a federal employee.
For the moment, defensive attorney Michael Rains is content to wait for the U.S. attorney’s office in Los Angeles — handed this chore because the investigation involves employees of the federal prosecutor’s office in San Francisco — to “out” the person or persons who leaked transcripts of secret grand jury testimony and other sealed documents. But Rains threatens to go public with his information if the government indicts Bonds, the San Francisco slugger who is thought to be the target of potential perjury or tax evasion charges.
Even without an indictment, he wants answers about the source, and he promises to use his information if those answers aren’t forthcoming.
“I have a pretty damn good idea of who it is,” said Rains, though he declined to share his specific evidence. “And I have a pretty damn good idea that it is someone whose paycheck looks a lot like the people who are conducting the grand jury to determine who it is. Meaning, it is somebody who is employed by the federal government. The problem is that I would like to see if the government really is going to ferret out the wrongdoing on their own, even if the wrongdoer turns out to be somebody who is employed by the federal government. And if they do, my faith in their integrity and their resilience and whatnot is restored. But if they don’t, then I guess I will. If they try to take a shot at Barry, we’ll do it then.”
Thom Mrozek, a spokesperson for the U.S. attorney’s office in L.A., refused to address Rains’ allegation, saying, “We don’t react to statements that are made outside of court.”
Rains also told ESPN.com that government attorneys will look like “buffoons” if they choose to indict Bonds. While suggesting that the investigation had turned into the “Barry Show,” the attorney boasted that a San Francisco jury will “never convict Barry” — a notion that has strong support from other defense attorneys involved in the BALCO proceedings, who spoke on background.
Bonds’ attorney fired his salvos as San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams prepare to appear in federal court on Thursday in the government’s latest attempt to get them to reveal their source of the grand jury transcripts from the BALCO proceedings, which were used to document their co-authored book, “Game of Shadows.” The reporters have acknowledged publicly that they obtained the secret testimony of Bonds, Jason and Jeremy Giambi, Benito Santiago, Gary Sheffield, Bobby Estalella, Armando Rios and former sprint world-record-holder Tim Montgomery, as well as details from federal agents’ interviews with a handful of coaches and other athletes.
It is illegal to leak grand jury testimony.
So far, the Chronicle’s lawyers have argued unsuccessfully that reporters should not be compelled to testify because the public benefit of their reporting outweighs the harm caused by the disclosure of grand jury material. U.S. District Court Judge Jeffrey White is expected to spell out their punishment on Thursday should they remain in contempt of court, though the government has already struck a deal that will allow Fainaru-Wada and Williams to remain out of jail during the appeals process.
Not lost on Rains is that Bonds’ personal trainer and boyhood friend, Greg Anderson, has been found in contempt of court twice for refusing to testify and is in jail for a second term. Anderson, who earlier served three months after pleading guilty to steroid distribution and money laundering, has refused to tell the court whether he gave Bonds steroids. At issue is whether Bonds, who owns baseball’s single-season home run record and is approaching Hank Aaron’s career record, lied under oath when he told a grand jury in 2003 that he never knowingly took steroids.
Anderson’s testimony appears to be pivotal to making a successful perjury case against Bonds.
“They need to be in jail,” Rains said of the reporters, whose work further cast Bonds as a steroid-enhanced cheat. “Other media people, of course, take exception with my attitude about that; but I say unless they go to jail, you make a complete mockery of the grand jury system. Since when can anybody declare that the purpose of our dealing with this issue has a larger purpose, and that is to educate the public?
“How can these guys sit there and say, ‘Oh, yeah, we’ve convinced kids in the Central Valley that they shouldn’t take steroids. And look at all the good that is coming.’ Come on, give me a break. This is all about money. It is all about a newspaper that was having financial problems. It is all about them making dough and how much they can make [from the book].”
In 2004, Fainaru-Wada and Williams began quoting closed-door testimony of Jason Giambi, Montgomery and other high-profile athletes that indicated the athletes had been supplied performance-enhancing drugs by the Bay Area Laboratory Co-Operative. They also reported that Bonds testified he, too, received substances, though he told the grand jury that he believed them to be flaxseed oil and arthritis balm. Prosecutors suspect the substances were the BALCO-supplied performance-enhancing drugs known as “the clear” and “the cream.”
Before the first Chronicle story appeared, a federal judge issued orders in March 2004 that prohibited BALCO defendants as well as government personnel from disclosing grand jury transcripts and other confidential materials to the media. At least three other attorneys for defendants in the BALCO case strongly back Rains’ suspicion that the source of the leaks is a government employee.
Only attorneys for the four BALCO defendants (Anderson, BALCO founder and president Victor Conte, vice president James Valente and track coach Remi Korchemny) and the government were privy to the discovery documents. It’s difficult, they say, to fathom that a defense attorney would turn over reams of documents at the risk of losing the license to practice law.
They further say that the release of the transcripts benefited none of the four original BALCO defendants, while the disclosures ultimately enhanced the government’s ability to make a public case and discredit Bonds and numerous other high-profile athletes. The case would have been viewed as excessively pricey and mundane, they say, without the juicy link to pro athletes, especially in light of the fact that none of the defendants received a prison sentence harsher than the four months served by Conte.
In some circles, Conte has been viewed as a possible source for the grand jury leaks, though recent court filings by the Chronicle seem to make that less likely.
“A lot of the stuff that came out came from [the government],” said one of the defense attorneys, who asked to remain anonymous. “During the case, there was stuff coming out all the time. Some of the stuff, we didn’t even have.
“Every time that we turned around, we were getting hit, getting hit. I think [the government] wanted to force a deal with Conte and all those surrounding people, and they weren’t cooperating. So why not go ahead and embarrass them? I think the motive was there. The problem is proving the government did it. If the government is investigating the government, how fair is that?”
That’s where Rains comes into play.
While he admits he hasn’t stumbled upon a smoking gun, Bonds’ attorney purports to possess enough evidence to finger the source of the grand jury leaks. He says IRS special agent Jeff Novitzky, who has led the probe of Bonds and BALCO, was one source of information for the reporters, though he stops short of identifying Novitzky as the person who provided the grand jury testimony.
“Novitzky, in particular, has an absolute obsession of taking down Barry,” Rains said. “The thinking is, if he has been given unfettered right to do anything he damn well pleases here in this case, then certainly things could happen. From Novitzky’s standpoint, he was angry when Barry didn’t get indicted to begin with.”
Rains acknowledged the feds could indict Bonds any time they desire, but said they know a conviction from a San Francisco jury is a dicey proposition. The moody superstar continues to have a solid fan base in the city and is associated by some with helping to keep Major League Baseball in San Francisco. And with the O.J. Simpson, Michael Jackson and Robert Blake cases as a backdrop, it seems a conviction for a celebrity defendant is an increasingly difficult task.
“They’ll never convict Barry,” Rains said. “And it makes you wonder why in the world they would want to indict him, if they can’t convict him. They’re going to be embarrassed. They’re going to be ashamed. And they’re going to look like fools in the process. They have done too many dirty, underhanded things.
“Their problem is, their forum to convict Barry is San Francisco. And like it or not, a lot of people in San Francisco kind of like Barry. The sports writers don’t, but the people do. Two, you got a lot of people in San Francisco — being the liberal Bay Area community that it is — that have a certain amount of mistrust of the government. And three, the government has completely played into the theory and belief of mistrust in the way it has behaved in connection with this case against Barry.
“And a San Francisco jury is going to hate the government in this case. And that is not to say maybe they’ll even feel … well, there could be some belief or could be some suspicion still that Barry did something and he knew better. But that is not enough to convict. And it is not going to convict him in San Francisco. So the bottom line is, he won’t be convicted. They don’t have either the evidence, or the talent to present the evidence to convict Barry Bonds.”