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Cyclist's trial may foretell Bonds' fate

Thomas tested positive then lied -- sound familiar?

Posted: Monday April 7, 2008 1:36PM; Updated: Tuesday April 8, 2008 11:59AM
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Tammy Thomas
Tammy Thomas is charged with perjury and obstruction of justice for allegedly lying to a federal grand jury investigating a steroid ring that spanned many sports.

The trial of former U.S. Olympic cyclist Tammy Thomas, convicted last Friday on perjury and obstruction of justice charges, lends insight on what to expect from a likely trial of Barry Bonds.

While Thomas' case may hinder Bonds' chance of proving himself innocent, the two cases may not go hand in hand with each other. Details matter, and in terms of comparison, Bonds' fate is not necessarily sealed based on Thomas' precedent.

However, in the scope of the federal government's pursuit of steroid-using athletes through perjury and obstruction of justice charges, her trial also illuminates broader implications for those who test the law and sports' rules.

Thomas, who received a lifetime ban by the U.S. Anti-Doping Agency in 2002 for testing positive for the anabolic steroid norbolethone -- her second failed drug test -- testified before a federal grand jury a year later about her knowledge and involvement with the inventor of a powerful steroid and several at the Bay Area Laboratory Co-Operative ("BALCO").

During this time, the IRS' Criminal Investigation Division, led by special agent Jeff Novitzky, investigated BALCO for possible illegal distribution of anabolic steroids and related money laundering. The investigation revealed that BALCO had illegally sold steroids to prominent athletes, including Thomas, who had worked directly with Patrick Arnold, the inventor of tetrahydrogestinone, better known as THG or "The Clear" -- a steroid designed to avoid detection. (Sprinter Marion Jones, currently serving a six-month prison sentence after pleading guilty to perjury charges, admitted to knowingly using THG, which has also been connected to Bonds and Gary Sheffield.)

With her testimony, Thomas received immunity from prosecutors, who were not interested in prosecuting her, but, instead, sought to take down BALCO. In exchange for talking, Thomas was guaranteed that the government would not use any information from her testimony -- directly or indirectly -- in any criminal case against her. Except in a prosecution for perjury and related charges.

But Thomas broke her end of the deal. In her testimony, she insisted that she had never used steroids, despite the government's contradictory proof: positive test results and incriminating testimony from physicians who personally examined her, and from Arnold, who in April 2006 pled guilty to illegal steroid distribution and money laundering.

About three years later, Thomas was indicted on perjury and obstructing of justice charges. And last Friday she was convicted of those charges, facing a likely sentence of six to 18 months in prison.

Thomas' trial, though interesting in its own right, proves far more compelling in context with the BALCO-related trials and particularly the one facing Bonds. If the Bonds' trial occurs, it would cover the same legal ground (i.e., perjury and obstruction of justice) tried by many of the same prosecutors, presided over by the same judge, and would be based on a similar set of BALCO and investigatory characters.

Bonds' trial will only occur, however, if the government succeeds in obtaining new charges against him. In February, Judge Illston deemed the indictment against Bonds duplicitous, meaning that it had unlawfully charged Bonds with two or more distinct offenses in a single count. The government should have little difficulty in obtaining new charges and a trial remains probable.

Given the factual and circumstantial similarities between Thomas' trial and Bonds' situation, her guilty verdict would seem to reflect poorly upon Bonds' chances for evading criminal liability. Plus, when coupled with Jones' guilty plea, Thomas' conviction might be viewed as momentum for prosecutors in their pursuit of athletes who "cheated" by using BALCO steroids and then lied about it under oath -- momentum that would not benefit Bonds.

On the other hand, there are reasons to believe Thomas' conviction may not necessarily foretell Bonds' fate. For one, although both Thomas and Bonds are connected to BALCO, their connections are primarily based on different persons. Thomas dealt most often with Arnold, while Bonds most often interacted through his personal trainer, Greg Anderson, who in turn interacted with BALCO's founder and president, Victor Conte, and others. Indeed, truthfully or not, Bonds has repeatedly insisted that he simply took whatever Anderson gave him and assumed it was flaxseed oil or other benign material. Thus, when viewed from the perspective of Bonds, he could be considered less knowing of BALCO's products than Thomas.

The "knowing" is a key point in a perjury trial. To prove that a defendant committed perjury, the prosecution must establish not only that defendant lied under oath, but also that he or she did so knowingly and unequivocally about a material matter and in response to a clearly-worded question. In other words, a lie based on a misunderstanding or faculty recollection would not comprise perjury.

The wording is another of those key details. Though similar in substance, the questions asked of Thomas and Bonds in their grand jury proceedings were expressed differently and were based on different facts. Bonds' attorneys claim the questions have been vague and imprecise. Their defense: any ambiguity, no matter the degree, can confuse a defendant. To blur matters even further, the fact that Thomas and Bonds provided similar answers to similar questions does not necessarily equate to both committing perjury.

Detail No. 3: quality of evidence. The evidence against Thomas was unquestionably strong.

A urine test that showed the presence of steroids in Thomas' body.

A testimony of Dr. Margaret Wierman, an endocrinologist from the University of Colorado who personally examined Thomas in 2000 and said that Thomas' radical changes and appearance and even her own comments made Wierman believe steroids were the cause.

A testimony by Arnold -- under oath -- in which he said that Thomas unambiguously sought steroids that would evade detection and that he shipped them to her.

Taken together, one can see why the jury came to the conclusion that Thomas committed perjury.

The evidence against Bonds, in contrast, may ultimately prove less compelling. In a trial, the government would introduce various documents seized from a raid on BALCO in 2003 and from Anderson's apartment that allegedly detail when and how Bonds used and paid for steroids. Whether those documents prove, beyond a reasonable doubt, that Bonds knowingly used steroids, is a different matter. The slugger would likely argue that he thought he was paying for legal performance-enhancing substances; if he paid for something else, he could claim that he didn't know about it (or so the argument goes). It remains to be seen whether, like in Thomas' trial, the government can provide a witness who, under oath, can say he spoke to Bonds about knowingly buying steroids.

It's also been reported that the government possesses positive test results for Bonds from the BALCO labs. On the surface the evidence would seem implicating. But keep in mind two points: (A) at least some of those tests are apparently from a client named "Barry B" rather than "Barry Bonds" and no one has a full list of BALCO's clientele, and (B) a failed drug test does not prove, beyond a reasonable doubt, that Bonds knowingly used steroids, especially if he sticks with his narrative of doing whatever Anderson told him.

Thomas had no such argument.

Not only may Thomas' conviction not predict the same fate for Bonds, but her trial may ultimately benefit him in preparing for his possible courtroom encounter. Most notably, the Thomas trial involved the testimony of Novitzky, who would likely be a key witness in Bonds' trial. Bonds' attorneys can now study Novitzky's sworn statements and search for any inconsistencies in his answers.

In a broader sense, Thomas trial shows that the government's aggressive stance on prosecuting athletes who use steroids doesn't stem from laws designed to cub the use, sale, or distribution of the drugs. Instead, it emerges from laws that embody our collective disgust for perceived lying, especially while under oath. The public reaction to Roger Clemens' recent appearance before Congress is a clear example. Yes, millions of tax dollars are spent and, yes, to some, the government's actions may defy logic. But to others, and many others, legal prosecution is an appropriate tool for deterring all citizens from lying while under oath.

Michael McCann is a law professor at Mississippi College School of Law and Chair of the Association of American Law Schools' Section on Sports and the Law.