Why You Shouldn't Believe Marion Jones: Vol. 38

Story by Eric.

This is the 38th submission in a long series about Marion Jones, a former elite sprinter who won honour and earned endorsements, fame and fortune by method of fraud. This series continues with the Victor Conte story, one which categorically ties Marion Jones to steroids. Though parts of this section may be historical in nature, its inclusion is relevant to the sum of the whole.

Now that comprehension levels have apparently been made more advantageous through Federal deposition revelations and Marion Jones’s own testimony, can a reasonable person take what Conte has stated on record – those public and private – as being accurate and true accounts of events and occurrences of which he stated that he and others have partaken?

More specifically, can one trust the validity of an exchange of information offer to the President of the United States of America introduced by Mr. Holley, who had, on record, stated that Victor Conte was being framed?

Does one believe the statements written by Special agent Novitzky – a sworn IRS officer at the time who, as a professional, had at least satisfactorily met the education requirements the IRS places on such individuals in his position – to be true and accurate to the best of his knowledge, especially when the prosecution uses the report in attempting to establish what its evidences will be and use for building a case for trial?

A man who, now, as a member of the Federal Drug Administration and a professional, at least satisfactorily met the requirements the agency places on such people in his position?

This is a very valuable question, as Joseph M. Burton of Duane Morris LLP – speaking for Marion Jones following the San Jose Mercury News report that claimed Conte stated he’d provided 27 athletes with performance-enhancing drugs – stated “[I]t is impossible to comment on the assertions made or, more importantly, for anyone to judge their reliability or credibility.[1] Burton then went on instead to say that any alleged assertion reported on – or by – Conte “is false.”

Burton opened up the door to suggest that, whilst not knowing who the source of the information was that the San Jose Mercury News’ story regarded, and being unable to test the source’s credibility, all that the source had reported on from Victor Conte should have been considered invalid and disregarded.

The US Federal government did not see it that way when Novitzky’s evidences were collected and used to indict Conte.

Peter V. Ueberroth, the chairman of the United States Olympic Committee said in a phone interview to The New York Times in late 2007, that “Agent Novitzky has been one of the pioneers in trying to rid an issue that is cancer-like in the world of sports.” [2]

Marion Jones later provided background to allegations that she had taken drugs by admitting to taking performance-enhancing drugs – facts which did just the opposite – at least circumstantially – of not proving that Conte’s assertions were “false”.

As for Conte, could a known cheat and impostor have ever been telling the truth prior to her confession?

Not according to Marion Jones’s legal team, responding to his “20/20” interview, which brought about a $25.000.000 defamation and tortuous interference with business relations case filed 2004-December-15 against Conte – later settled out of court two weeks after Conte’s attorney, James Wagstaffe, submitted documents saying he would, as part of the case, take the depositions of Jones, “and other individuals who will corroborate plaintiff's use of anabolic steroids and other performance enhancing drugs.”[3]

(The suit (case number 3:04-cv-05312-SI) was filed in San Mateo County District Court, San Francisco Office under presiding Judge Susan Illston, with the exact nature of the suit being Assault, Libel and Slander, the cause being §28:1331 of the Federal code, Personal Injury. The suit was terminated 2006-February-6).

However, Marion Jones’ confession nearly three years later caused Conte to be the victor among the two, and prompted another question: If Marion Jones had simply “panicked” and found it easiest and the least painful route to lie to investigators in 2003, why did she bother filing this lawsuit against Conte the following year anyway? Why did she not sue Trevor Graham for sneaking “the clear” into her training regime without her knowledge?

Alas, Marion Jones was trying to protect her coach at the time in the same way she tried to protect their ex-boyfriend, which followed the same manner she attempted to protect the integrity of her ex-husband three years earlier in a land far, far away where Johnny Cochran, Marion Jones, C.J. Hunter and Conte were all huddled together under the same tent.

It must have been that way, for it was so she said.

The San Francisco Chronicle reported that in court papers filed in January 2006, Conte’s attorney, James Wagstaffe (Kerr & Wagstaffe LLP, San Francisco, CA), wrote that Conte’s defence team intended to take the depositions of Marion Jones, C.J. Hunter, and Tim Montgomery. This information would have been recorded first in the written stage of the discovery process, and then it would have been taken orally with a court-reporter. Those interviews would have been legally binding.

The purpose of those depositions would have been to have Marion Jones, Hunter and Montgomery testify to a specific story, and be bound by truth to re-state the same story at Conte’s trial. Information provided in the depositions could be used at trial, and, with Marion Jones unable to shift stories, she would have been compelled to answer direct questions regarding accusations made by Hunter and Conte, and touched on by Montgomery; had she been caught in a lie or had omitted a fact which was contained in the deposition but not stated during the Conte trial, her reputation as a truthful person would have come into question, and her testimony would have believability consequences whereby it would not have been believable on any points.

Marion Jones later proved, in October 2007, that any – and all – of her previous statements were subject to being tossed into the trash bin, having confessed to taking drugs during a time she had been vocal about having done just the opposite, namely been drug-free.

Marion Jones’s team stated that Conte’s attorneys had done a “sudden about-face[4] on their position with regard to the Conte-Marion Jones relationship, stating that Conte had committed a very serious crime against her character.

Victor Conte is either lying or when the statement was made it was involuntarily coerced. This is a character assassination of the worst kind.[5]

Marion Jones did not, as Conte’s team had, force the issue of taking Conte’s deposition to distinguish, if in fact, Conte had shifted stories and called his credibility into question. Marion Jones’s attorneys bore the burden of proof in the case, and bore the burden of producing documents which could support their claims that Conte maliciously slandered their client. Conte would have been bound by the same deposition laws whereby he would have been required to make truthful statements which Marion Jones’s counsel could use to verify and cross-reference prior to going to civil trial, with any omissions or grossly misstated facts used to impeach him.

Where, if Marion Jones’s counsel had reviewed their investigative notes for the sole purpose of comparing and drawing a parallel to any of Conte’s signed or recorded statements and other investigative materials which may have been available to them, is there disagreement between Conte’s statements sans his Fifth Amendment right justifying his liberty to not repeat such statements under oath (in lieu of his criminal case)?

What documents of fact did they have which could have demonstrated in no uncertain terms that Conte was not telling the truth? Which witnesses did they subpoena to refute Conte? Could Marion Jones have found herself in a quandary had she, in fact, produced documents which, when cross-examination occurred, would have provided a link to her? Did her attorneys take that risk?

The answer to that and other questions raised above would be spilled out four years later when she confessed to deceiving the sport during this period of time, and making those defensive stances against Conte nothing more than “hot air”.

USA Today cited an Atlanta-based libel attorney in stating that the Marion Jones case was a publicity stunt, and any serious lawsuit would have also been directed at the broadcast networks for permitting Victor Conte to have had an open platform to defame Marion Jones.

Lin Wood, an Atlanta libel attorney, called the suit "a public-relations tactic." If Jones were serious, she also would have sued ABC and ESPN, Wood said; Conte does not have the resources to defend the suit or pay a judgment. [6]

Had the networks also committed acts which were injurious to Marion Jones, her attorneys, following civil settlement protocol and with a vested interest in a positive outcome, would have sent them written settlement demand letters outlining their theories of liability, causation and damages, and they would have asked for an amount of money for settlement.

To this day, in a time and age where Marion Jones is flat broke, no such records are known to exist.

Burton and Nichols were permitted an opportunity to discuss the lawsuit via satellite as guests on the CNN show “American Morning”, which aired 2004-December-16 at 07.00 EST. CNN’s Miles O’Brien interviewed both attorneys, who, when speaking of the depth of the lawsuit, stated the suit, itself, was aimed specifically at Conte for his statements.

Miles O’Brien: All right. Why did you single out Mr. Conte and not go after ABC and ESPN as well?

Rich Nichols: Well, this is the first time that anyone has taken actually responsibility, public responsibility for alleging that Marion Jones has used performance- enhancing drugs. It's the first time that Marion Jones has had an opportunity to avail herself of the legal system to address these false allegations, and Victor Conte was the first one to come forward and put his name on these false allegations.

Miles O’Brien: All right, but nevertheless, I mean, you didn't want to shoot the messenger? Most people like to do that.

Rich Nichols: Shoot the messenger?

Miles O’Brien: In other words, ABC -- go after the broadcast that actually aired the defamation, as you allege it.

Rich Nichols: This defamation action is about Victor Conte and his false allegations against Marion Jones. [7]

In other words, Nichols had no other recourse, because his client was, indeed, a drugs-taking athlete whose very tactics – suing – would have landed her on record against any of those media outlets who had spread the news, and it would have forced her to have testified that she had not taken drugs had any of those hypothetical cases gone to trial. Marion Jones would have again lied to Federal authorities on matters concerning her connections to performance-enhancing drugs, one which would not have netted a token prison term at worse for her.

The brash Conte, keeping his place atop his mountain during the smokescreen which was Marion Jones’s lawsuit, spoke in response to it, stating that Marion Jones was using the lawsuit as a publicity stunt, and he continued to call her a drugs user.

This is nothing more than a PR stunt by a desperate woman, who has regularly used drugs throughout her career. ... I stand by everything I said on the 20/20 special. I am telling the truth, and Marion is lying.[8]

Conte was telling the truth: Marion Jones was a desperate woman who had regularly used drugs throughout her career. And, as Conte noted, she was lying.

The lawsuit seemed to be a show to the public of which party had the stronger hand, which had the most resolve, and which had the most determination to stand in the face of challenges set in play by the other. Conte, represented by Kerr & Wagstaffe LLP of San Francisco, CA, had a motion to have the lawsuit stayed in order to not incriminate him in his United States vs. Victor Conte criminal case.

The Court finds that a stay is proper because “[i]f discovery moves forward, [the] defendant will be faced with the difficult choice between asserting [his] right against self-incrimination, thereby inviting prejudice in the civil case, or waiving those rights, thereby courting liability in the civil case.[9]

Marion Jones attempted to have the stay overruled due to what she alleged were prejudices against her, and argued that she would have suffered loss of wages, endorsements and sponsorship opportunities – as well as eligibility to compete at certain track meets due to the stay.

Conte had no absolute constitutional right to a stay in the civil proceedings against him.

The court deemed that those harms against Marion Jones could be remedied by monetary damages and that Marion Jones could be adequately compensated – even if she obtained a judgment in her favour after the stay was lifted. The presiding judge, Honorary Susan Illston, United States District Judge, stayed the case, stating it made efficient use of judicial resources by “insuring that common issues of fact will be resolved and subsequent civil discovery will proceed unobstructed by concerns regarding self-incrimination.”

In layman’s terms, Conte received a stay due to having a coinciding criminal case in which testifying in a civil case would have revealed criminal activity and produced the real likelihood of his having to face certain risk of imprisonment resulting from that testimony. Due to adverse inferences having the opportunity to be drawn against Conte from his assertion of his Fifth Amendment rights (see Baxter v. Palmigiano, 425 U.S. 308 (1976)), Judge Illston stayed Marion Jones’s civil action until Conte’s criminal matter could be resolved.

Conte and Marion Jones settled the civil case outside of U.S. District Court on Tuesday, 2006-February-8, after the criminal case against Conte concluded Tuesday, 2005-October-18 with his sentencing.

The world at large was led to believe that both sides had been negotiating over a several month period leading up to the agreement to try to settle the case and avoid a trial. Conte was neither certified nor accounted for as being a court-proven liar, insofar as his case was settled out of court, with Marion Jones’s counsel never proving that Victor Conte lost the defamation case brought before the court.

No one outside of the involved parties at the time knew the true winner in the match, or how much money – if any – was collected by Marion Jones. The answer, in hindsight, is that Marion Jones did not recover any legal damage claims whatsoever insofar as Conte was ready to take the case through to fruition. Marion Jones’s alleged skid-row low cash flow had partly been due to pursuing the defamation case against Conte, and her attorneys already knew that Marion Jones had earlier lied to Federal investigators, against their will.

Marion Jones had an unquestionably large practical interest in settling this case before it went to trial, as she would have incurred fewer costs (though her attorneys may have deferred court costs pending the outcome of the settlement, those costs would have risen with each action taken and each day which came to pass) from her pocket book; Wagstaffe would have not have had cause to proceed with proposed depositions – a potential liability which would have put Marion Jones’s previous statements to the test against the documentation readily available from Conte – with Marion Jones obligated to disprove the veracity of those specifics; and Marion Jones, herself, would not have had her credibility towed to the line, though, less than two years later, she would foul her credibility out of life’s game.

Finally, and one of the most compelling reasons, Marion Jones would have avoided the stress of having to file suit, wait, litigate and be involved in a potentially drawn-out process considering it was stress that she stated was a 2006 season-ending de-motivator which effectively reduced her desires to fight to null, right?

On the other hand, litigation could have had the effect of creating potential liability and damage factors for Conte in this case and exposing him to a greater payout to Marion Jones than he may have been willing to make if, after all of the above reasons including evidences and depositions taken into account to expose her, a jury sided with her – even if she were deemed to be comparatively at fault.

Had that happened, would Conte have had filed his own lawsuit against Marion Jones to recover any monies won when she confessed to having been a cheat, nonetheless, despite her testimony to the contrary?

[1] ESPN.com, “Jones facing ‘character assassination,’ says lawyer,” 2004-04-26
[2] The New York Times, “A Harvest of Trash and Turmoil for an Agent Fighting Steroids,” 2007-11-18
[3] San Francisco Chronicle, “BALCO defamation lawsuit settled,” 2006-02-07
[4] USA Today, “Jones sues BALCO founder, denies steroids use”, 2004-12-15
[5] San Francisco Chronicle, “Olympians got steroids, feds told”, 2004-04-25
[6] USA Today, “Jones sues BALCO founder, denies steroids use”, 2004-12-15
[7] CNN, “American Morning”, 2004-12-16
[8] USA Today, “Jones sues BALCO founder, denies steroids use”, 2004-12-15
[9] Marion Jones, Plaintiff vs. Victor Conte, Defendant, “Order Granting Defendant’s Motion For Stay And Vacating April 22, 2005 Hearing Date”, US District Court, ND, #C 04-5312 SI

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