Posted by: Mike Cornelius | August 21, 2011

Time To Stop Feeding Novitzky’s Obsession

Sometime next month, U.S. District Court Judge Reggie Walton will decide whether to let federal prosecutors proceed with a new perjury trial against Roger Clemens. In a filing this week, those same prosecutors said that they had made an unintentional error when on just the second day of testimony at Clemens’s first trial they showed jurors a video containing evidence Walton had specifically barred from the trial. In declaring a mistrial at the time, Walton described the error as one that “even a first-year law student” wouldn’t make.

In this week’s filing the prosecution team took responsibility for the error, and offered as an explanation the somewhat bizarre excuse that they were too bogged down with opening statements, jury selection, and jury instructions to realize that they hadn’t made sure some of their evidence conformed to the judge’s rulings. So they were too busy with some aspects of trying a major, highly publicized federal case to allocate the time and resources necessary to make certain that all aspects of trying that case were in proper order?

Clemens’s attorneys filed their own papers last month, asserting that the government all but intentionally showed the video, in which Congressman Elijah Cummings reads an affidavit from Laura Pettitte, wife of former Yankees pitcher Andy Pettitte. In the affidavit she said that her husband had told her Clemens had admitted using human growth hormone. However Walton had ruled Laura Pettitte’s testimony inadmissible hearsay. The defense team alleged that the prosecution knew their case was weak and going badly, and so invited the mistrial. They contend there should be no new trial under the double jeopardy rule.

Walton will hear oral arguments on September 2nd, and then proceed to his decision. In doing so he will be guided by various federal statutes and myriad case-law, which is both as it should be and too bad. Because the federal prosecution of Roger Clemens, like that of Barry Bonds before and the likely prosecution of Lance Armstrong to come, cries out for the application of some common sense. In the immortal words of Roberto Duran, “no mas, no mas.”

With U.S. Food and Drug Administration agent Jeff Novitzky often lurking in the background, our government has spent millions upon millions of dollars and our media has written nearly as many words in the pursuit of athletic cheats. Novitzky, the latter-day Elliot Ness of the steroids era in sports, has been relentless to the point of obsession. His targets have included track star Marion Jones and cyclist Floyd Landis in addition to Bonds and Armstrong. He convinced Kirk Radomski, a clubhouse attendant for the Mets, to turn government informant. While not directly involved in the prosecution of Clemens, Novitzky was a major source for the Mitchell Report which named Clemens as a steroids user and led to the congressional hearings at which the 7-time Cy Young Award winner is alleged to have lied under oath.

Athletes shouldn’t cheat, and people who swear to tell the truth shouldn’t resort to claiming that a former teammate must have “misremembered” a conversation. But neither should investment bankers play craps with other people’s money by inventing exotic and complex securities that both trade on and directly impact the stability of the housing market; and there haven’t been a lot of Jeff Novitzkys going after those guys, nor many members of Congress working to get to the bottom of that mess.

More important, sports fans are by and large a pretty discerning and judgmental bunch. It’s been nearly ten years since the federal government began its investigation of the Bay Area Laboratory Cooperative (BALCO), nearly four since Bonds was indicted on charges of perjury and obstruction of justice, more than three since Clemens appeared before the congressional committee, and at least twelve months since the Novitzky turned his attention to Armstrong. Despite all of that time and all of the money spent, the legal results to date are piddling. Bonds was convicted on just the obstruction count, and that sole guilty verdict may not withstand appellate scrutiny. The first trial of Clemens ended abruptly. The investigation of Armstrong plods along. But while the legal system has been unable to render decisive verdicts, the court of public opinion has acted. The reputations of all three men have been shredded, with no prospect for recovery.

Barry Bonds and Roger Clemens will never see the inside of the Hall of Fame without buying a ticket. Even Lance Armstrong, once widely hailed as an American hero for overcoming testicular cancer and going on to win the Tour de France seven times, has lost much of his luster. For these athletes, used to the cheers and adulation of their fans, public condemnation is likely a worse sentence than 18 months of probation, or even time in a federal prison; public dismissal, a collective “who cares” from fans who once cared passionately, is the most severe punishment of all.

Fans have rendered their judgment on the steroids era, and for those deemed the most serious cheats that judgment is harsh. Jeff Bagwell spent his entire career with the Houston Astros. No report has ever named Bagwell as a user; no associate has ever pointed an accusing finger at him. But fans saw him mysteriously bulk up and his hitting numbers spike in the mid-90’s, and then watched as those same numbers collapsed a decade later as widespread drug testing began. The fact that at the latter point in time Bagwell’s injury-ravaged right arm had all but fallen off doesn’t seem to matter. Judgments have been made. This year was Bagwell’s first time on the Hall of Fame ballot. While not necessarily a first-ballot shoo-in, a career that included 449 home runs, four All-Star selections and an MVP award would under normal circumstances merit serious consideration for the Hall. But Bagwell received barely more than forty percent of the vote, and faces a long and unlikely climb to the seventy-five percent needed for induction.

At the same time, as the major team sports move, albeit unevenly, toward more rigorous testing, fans have increasingly moved on. Alex Rodriguez has admitted to using steroids for three seasons while playing for Texas. Two years ago the New York Times revealed that David Ortiz was among those players who had tested positive for banned substances in 2003. While both have received a fair measure of condemnation, it seems that most fans have judged them to be not among the serial cheats. Both were elected by the fans to starting spots on this season’s American League All-Star team.

As a society we may have moved beyond the pillory and the stocks, but for our sports heroes reputation remains all important. Fans are perfectly capable of making sound judgments about their idols, even when that means casting them down off their pedestals. They don’t need Jeff Novitzky, or millions of dollars spent on more federal court cases, to identify and condemn the cheats.


  1. What a great blog-post. I’ll be sure to spread the word on this one.
    Couldn’t have said any of this better myself.
    Regards, Bill

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