This was all too much for Hunter. Although he and Jones had signed a nondisclosure agreement at the time of their divorce, he thought the book was a flagrant violation on Jones’s part, and so he felt free to respond. He spoke first to Novitzky and then, on July 8, to the grand jury. Jeff Nedrow and another assistant U.S. attorney, Haywood Gilliam, did the questioning:
“Did you and Miss Jones receive shipments of the ‘clear’?”
“Yes.”
“At your house in North Carolina?”
“Yes.”
“Who were those from?”
“They were from Victor [Conte], but he would label it as Vince Reed. Anytime he sent anything that I guess was illegal or banned, he would never put his name on it. . . .”
Gilliam showed Hunter a vial about half full of a clear yellowish liquid and a syringe. “Is that familiar to you?”
“Yes.”
“What is that, as far as you can see?”
“It appears to be the ‘clear.’ That’s the way it was packaged. That’s identical to the way it looked. Earlier on when we received this, we didn’t have a syringe. We didn’t need a syringe with it because in the beginning you just drank it. . . .”
“Do you remember about when the syringes started coming with it?”
“I believe it was right round the time he switched from the norbolethone to the THG. . . . It was after Sydney because he had said that he thought everybody had that in Sydney. They were on to that in Sydney, something like that, so it was time to switch to something else.”
“And who was telling you this?”
“Victor.”
“And he said that to you directly?”
“Um-hum . . .”
“Based on your personal knowledge, did Miss Jones see these vials when they arrived by FedEx at your house?”
“Yes.”
“Do you remember how often shipments like this would come?”
“He sent so many shipments . . . originally he sent it to Trevor [Graham] and then I guess they had a little rift or whatever, and he didn’t trust Trevor because he felt that Trevor was giving the ‘clear’ to other athletes, you know, taking some of Marion’s and giving it to other athletes. So that’s when he started sending it to the house. . . . There would be one dose per container. He only wanted to send a limited amount. So that’s the way he set that deal up. . . .”
“So, now, talking about the ‘clear,’ to your knowledge did Miss Jones use the ‘clear’ at any point during your marriage?”
“Yes.”
“When was the first time you can recall her using it?”
“The first time was around Sydney . . . it was an apartment, it wasn’t technically a hotel, where she would use it where it was in the refrigerator along with everything else.”
“How would she use it?”
“At that time, like I said, you would drink it. And then there would always be a little residue left and his instruction was to put a little bit of water in there, mix it around, and drink.”
“When you say ‘his’ instruction, you mean Victor?”
“Victor through Trevor at that point.”
“So you were getting instructions from Trevor about putting some water in it and swirling it and drinking it?”
“Right.”
“How many times can you remember firsthand seeing Miss Jones use this ‘clear’?”
“It’s quite frequently. That was the one thing she used the most . . . it was a common occurrence, common to the point where nothing really stands out except for Sydney . . . that is where I really remember seeing it . . .”
“How did the ‘clear’ that you said you saw Miss Jones taking in Australia get there?”
“Trevor brought it.”
“How do you know that?”
“Trevor packed everything. He didn’t want Marion to carry anything.”
“And how did he get it?”
“Well, either Victor sent it to him, or at the time that he and Victor weren’t doing so well, he’d send it to us and we’d give it to him. But he always carried everything. Whether he went to Sydney or whether we went to California, he carried everything. Once we arrived he would, you know, he would give it back to her.”
“So, do you remember when you were in Australia Trevor specifically coming by and dropping things off?”
“Yeah, he came by and put it in the fridge.”
“And ‘it’ being the ‘clear’ and some of these other . . .”
“The ‘clear’ and the growth hormone.”
“Based on your observation, did Miss Jones know what this was, this ‘clear’?”
“Yeah. I mean, she knew before I knew . . .”
“Did she ever refer to it as flaxseed oil?”
“No, no. Victor made a comment, and I think Trevor made the comment, that if anybody ever asks you what it is, say flaxseed oil because I guess it looks just like flaxseed oil. I’ve never seen flaxseed oil, but that’s what he said.”
The prosecutors shifted from the “clear” to human growth hormone. “Did you ever see Miss Jones inject herself with human growth hormone?”
“Yes,” Hunter replied.
“When?”
“In Sydney.”
“And what were the circumstances . . . ?”
“I mean, just in the room when it was time for her to take it and she took it.”
“How?”
“Subcutaneously with the syringe.”
“She injected herself?”
“Yeah . . . pulled it out of the vial and did, you know . . .”
“And was she actually drawing the hormone out herself?”
“Yes, um-hum.”
“Were there ever instances in which you injected Miss Jones with growth hormone?”
“At first because she didn’t like needles. . . . She knew what it was and what had to be done. She just didn’t like to do it. Trevor would tell me what to do, I showed her how to do it, and she did it from that point on. . . . When she would inject herself, she would go to that bathroom so she could use the mirror. Then I rarely, if ever, went in there with her. But, I mean, I know what she did when she went in there.”
Hunter’s testimony was devastatingly candid, in contrast to so many other BALCO witnesses. Not only was it consistent with what the investigators had learned from Montgomery and others, but Hunter was a direct eyewitness to Jones’s injections of illegal drugs, and to both Conte’s and Graham’s involvement.
Jones was allowed to compete in the 2004 Olympics, presumably without benefit of performance-enhancing drugs, but qualified only in the long jump and as part of the 4x100 relay. She managed a fifth-place finish in the jump and fumbled the handoff in the relay. She was in tears when interviewed after the race, saying her performance was “extremely disappointing. Words can’t put it in perspective.”
E
fforts to settle the Conte case with some kind of plea bargain had gone nowhere, especially as testimony implicating Conte and Valente mounted. Conte’s lawyer had taken the case directly to President Bush. In June, in a letter copied to Attorney General Ashcroft, Holley wrote:
Mr. Conte is willing to reveal everything he knows about officials, coaches and athletes in order to help to clean up the Olympics. . . . In return, Mr. Conte asks that he not be forced to plead guilty to money laundering (a crime which he insists he did not commit) and that he be guaranteed a sentence of straight probation for both he and Mr. Valente. Quite frankly, what Mr. Conte has to offer in terms of real value to this country is worth far in excess of any possible sentence in the pending criminal case.
Predictably the effort went nowhere, and the Olympics had come and gone without any assistance from Conte. But now the grand jury leak and other coverage offered another angle: prejudicial pretrial publicity, and a possible grounds for dismissing the government’s case, especially if leaks to the
Chronicle
could be pinned on the government lawyers or investigators. As Conte said in an e-mail to Fainaru-Wada after his story about Montgomery’s testimony, “Maybe you have done me a big favor.”
Citing prosecutorial misconduct and other alleged transgressions, the defendants moved to dismiss the indictment on October 8. Holley and Ellerman asserted that
While these charges were pending, without any notice to any defendant in the case at bar, or this Honorable Court, the government simply turned over all relevant police reports and discovery in the case to private individuals in Congress who in turn disseminated them to members of USADA who in turn, for whatever reason, gave them out to private individuals, athletes whom they were investigating, and to their counsel.
Almost all of it found its way into the hands of the media, who had a field day with it. The media reveled in the release of Mr. Conte’s disputed “Memorandum of Interview,” which says that he turned on the athletes whom he had helped and befriended over the years. Mr. Conte said that he did not do so but who would listen? The information literally generated thousands upon thousands of articles all over the United States, not to mention the rest of the world. Defense counsel sometimes received up to forty or fifty telephone calls per day from members of the news media trying to get a story. And the name BALCO became a household word synonymous with illegal steroid distributions.
And the leaks kept coming. Filed already with the Court and by reference made a part hereof is a list of a mountain of
San Francisco Chronicle
articles slandering Mr. Conte and all appearing to come from government sources. Every single news leak sank the ship of the defense in the case at bar a little bit deeper and slandered Victor Conte and the other defendants to the point where they are afraid to even go out in public. Someone has even leaked grand jury testimony for which there is a Court order prohibiting the same. And the testimony was devastating to Mr. Conte and his business and is much disputed although the time for challenging it still lies in the distant future. . . .
Neither Mr. Conte, nor any of the other defendants in this case can ever receive a fair trial. It’s not just that finding an impartial jury anywhere in this country would be difficult, but a fair trial requires a fair and even atmosphere within which to have that trial. The world believes Mr. Conte is not only guilty but the non-thinking public thinks of him as some sort of villain–guilty until proven innocent–all to the benefit of the prosecuting government. And much if not all of it caused directly by a government which does not appear to care a whit whether or not these defendants ever receive a fair trial. One might even call it a “trial tactic.”
Ellerman told the
New York Times
: “The jury pool has been infected, and our right to a fair trial has been jeopardized. It’s alarming. Things are spinning out of control.”
The case had undeniably generated intense media coverage. But apart from the fact there was still no evidence the government had leaked anything, the approach had one major problem: Conte himself. Virtually from the day the government raided his offices, Conte had been agitating to take his case directly to the public, an impulse his lawyers had vigorously discouraged. Still, Conte had sent a stream of e-mails to Fainaru-Wada and other reporters covering the story, with tantalizing hints of more revelations to come, like his allusion to the CD-ROM. Far from shunning pretrial publicity, he appeared to revel in it. By exposing the extent of illegal drug use in sports, even his own role as a purveyor of banned drugs, perhaps he could emerge as a reformer.
Conte says he stopped listening to his lawyers, and opted to make his own decisions. He was avidly courted by television newsmagazines
60 Minutes
,
Dateline
, and
20/20
. All staged elaborate efforts to secure his exclusive cooperation. He chose
20/20
because ABC could offer him a tie-in to sister network ESPN. Conte agreed to write a first-person account for
ESPN
the magazine and appear on
20/20
in a prime-time interview, both of which would appear the first week in December. With this bold stroke, Conte evidently felt he could reverse over a year of negative publicity. “A lot of people had lied about me publicly,” Conte said. “I said to myself, The best thing I can do is tell the truth, and come out publicly and set the record straight.”
In many ways Conte was a natural for TV: provocative, combative, willing and even eager to shock his audience. ABC assigned Martin Bashir, best known for an on-air interview of Michael Jackson that caused the pop star to be investigated for child molestation, to interview Conte.
“Did you feel there was a moral problem when you realized that if you wanted to compete, you had to cheat?” Bashir asked.
“The answer is no,” Conte replied. “It’s not cheating if everybody is doing it. And if you’ve got the knowledge that that’s what everyone is doing, and those are the rules of the game, then you’re not cheating. . . . Did I feel that I was doing something different than other athletes and coaches and trainers had done throughout the entire history of the Olympic sport? The answer is no.”