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When President Bush mentioned steroids in his State of the Union earlier this year, some people wondered why the president seemed interested in an unfolding criminal case involving a Bay Area drug lab and some of the country’s best-known athletes. Now, J. Tony Serra, who’s defending San Francisco Giants slugger Barry Bonds’ personal trainer, says he’s figured it out. “We believe that it’s possible that there have been directions from Washington … a political agenda, rather than what we call criminal interest,” said Serra, who represents Greg Anderson, one of four men indicted on federal conspiracy charges involving performance-enhancing drugs. Whether he’s defending people on drug charges or suing the FBI, Serra likes to put the system on trial as part of a strategy to convince jurors that the government is abusing its power. Serra has a successful track record over the years, but the strategy can be dangerous. “Sometimes the thinking is … we can get jurors in a potential pool thinking that the defendant is not being treated fairly,” said John Donohue III, a criminal law professor at Stanford Law School who has also done defense work. “But if you make it political and the sympathy is for the government, then that kind of undermines the defense.” Other observers say the case is already political, and see Serra’s move as just hitting back. Besides Bush’s speech, Attorney General John Ashcroft got in on the action when he personally announced the grand jury indictments in the case Feb. 12. Serra said the government is rushing to trial and wants to get convictions so Bush can use the case to help win re-election. Last week, he filed a Brady motion seeking documents that would reveal “any bias, interest or motive of law enforcement officials.” The move is an attempt to broaden the case, making it about something larger than seized vials of alleged steroids. In 1997, Serra defended a Native American named Eugene “Bear” Lincoln, who was on trial in Mendocino County for killing a white sheriff’s deputy. Serra brought in the history of white oppression of Native Americans and attacked the Mendocino County power structure. Lincoln was acquitted, and the district attorney who prosecuted him lost the next election. More recently, Serra served on the team that represented Earth First! activists Darryl Cherney and Judy Bari in their civil case against the FBI and Oakland, Calif., police. The activists’ lawyers argued that Cherney and Bari, who were injured by a bomb in their car, were persecuted by authorities because of their activism, and an Oakland jury agreed. The government agreed to drop its appeal and pay $4 million. But few think Serra’s current motion has any chance of success. Courts traditionally give great deference to prosecutorial judgment and would only very reluctantly order attorneys to give up internal memos regarding machinations within the Department of Justice, Donohue said. “These are matters within the discretion of the executive branch,” Donohue said. “Traditionally, the government hasn’t had to explain itself. The defense is not entitled to this type of information.” The Northern District U.S. Attorney’s office would not discuss Serra’s motion. One former federal prosecutor said it’s going to be very difficult to prove there’s some other political bias influencing how the U.S. Attorney is prosecuting the case, since under Ashcroft the Justice Department has taken a “very hard line on almost everything.” “I think [Serra's] theory is wacky,” the ex-prosecutor said. Serra believes much of the government’s case rests on items seized during a September raid on Bay Area Laboratory Co-operative (BALCO) in Burlingame, Calif. After Friday’s hearing, Serra said the government was rushing to get the case to trial before the fall election and before baseball season ended. “After the election, the case will go away, that’s what I think,” Serra said. Former prosecutors said it’s normal to try to get cases to trial quickly. They said defense attorneys will try to delay things as much as possible. “I appreciate what he’s trying to do. The timing and circumstances [of the indictments] may be intentional, but there’s nothing wrong with that,” said Miranda Kane, a former Assistant U.S. Attorney who’s now a partner in the white-collar criminal defense practice group at Rogers, Joseph, O’Donnell & Phillips in San Francisco. “The issue is whether or not the indictment is supported by probable cause.” By showing some kind of political bias, Serra hopes to be able to impeach government witnesses in much the same way he has attacked police informants. “If the true motive was Bush’s desire to purge the Olympics of steroid users, as an election campaign boost for him, certainly the trier of fact should be so aware,” Serra wrote in the motion. “Here, given the involvement of the Bush administration … disclosure … is relevant for effective cross-examination at trial, as well as a potential motion to dismiss the indictment upon outrageous government misconduct.” Although a lawyer working with Serra, Anna Ling, called the motion “very typical,” former interim Northern District U.S. Attorney David Shapiro said he hadn’t seen anything like it. Shapiro, now at Boies, Schiller & Flexner, said there are simply too many privileges attached to government work product for Serra to succeed. Former Assistant U.S. Attorney Leo Cunningham, now at Wilson Sonsini Goodrich & Rosati, agreed. But even though he called the motion “a fishing expedition,” Cunningham said he and his colleagues were surprised when Bush made reference to the controversy surrounding the case in his Jan. 20 speech. Although the indictment wasn’t announced until Feb. 12, news of the investigation was widely reported. Normally, prosecutors say it’s illegal and unethical for them to discuss pending matters. “Serra is addressing something a lot of us were talking about. I think Serra is properly exploiting some bad judgments by the higher-ups at the DOJ,” Cunningham said. The Justice Department in Washington, D.C., also declined to comment. The case is U.S.A. v. Greg Anderson, et al., 04-0044.

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