This is the 39th 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.
In light of Conte’s statements made on “20/20” – the basis of this lawsuit – they may actually not have been considered illegal in the context of the law whereby Conte, keeping detailed accounts of regularly conducted activities as they pertained to his dealings with Marion Jones – even those which could be considered “hearsay” by means of Tim Montgomery’s grand jury testimony – could be argued as being legal and binding under the “Hearsay Exceptions” act.
Excerpted from that act is a layman’s description of how that law works in the
Records of regularly conducted activity.
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ‘‘business’’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Furthermore, Conte could have proven through admissible evidence that Marion Jones behaved in particular ways on particular occasions as he had stated – claims which would have called her character into question. Conte could have countered Marion Jones’s individual claims of having good character by introducing character evidence against her had they made it to the courtroom rather than having settled. Conte’s testimony would have nonetheless been legally sufficient to be used as material evidence that Marion Jones used performance-enhancing drugs.
This would have caused irreparable harm to Marion Jones for reasons stated earlier, namely that she would have had to lie before the courts again insofar as she would not have had her attorneys initiate proceedings against Conte and then cave in during the trial.
Marion Jones’s and Victor Conte’s characters were an element of her defamation claim against him, and Conte could have introduced evidence that Marion Jones did, indeed, have a reputation of being a dishonest person – facts, had they been established and believed, which would have been admissible against her character, nullifying and voiding any notion of “character assassination”. This revelation would have caused comparative fault for Marion Jones in her lawsuit, and would have put a percentage of personal fault for causing her own character “injury”.
His attorneys could have questioned a jury in the case at its conclusion – had it not been settled before it was to greatly unfold – if Conte intentionally, knowingly, recklessly and negligently made claims about Marion Jones which were untrue, and was there reasonable doubt that the claims he was making – based on evidence he may have provided – that he did not falsely accuse Marion Jones.
Additionally, no legal basis was established on Marion Jones’s assertions that evidences collected were done so involuntarily through coercion. Proof and testimony collected and entered as evidence against Conte and admitted at trial did not amount to a constitutional violation of Conte never having understood his rights to a lawyer.
Had Conte’s Miranda Rights been breached, his conviction would have been reversed. Had his testimony been coerced, Marion Jones’s team could have used that legal reference to strike from record and invalidate Conte’s subsequent statements on the matter.
A very telling point to Conte’s argument was to have been that Marion Jones had a working relationship with him – a point which he has maintained as late as interviews conducted in May, 2007 – and he had supplied her illegal performance-enhancing products – a claim which
Marion Jones, according to Graham, had refused unopened BALCO packages, but had, according to his understanding, taken nutritional supplements offered by Conte – a claim which is in direct contradiction to Marion Jones’s claim that she took GNC products, not BALCO ones. Marion Jones later confirmed that she had a BALCO link, but then stated she had discontinued using Conte’s products. She also stated that Graham provided her with “the clear” – a product which, at the time, was made for Conte’s BALCO lab for distribution as Conte saw fit.
“Actually ZMA was sent to me from BALCO, all right,” she said. She added: “I began getting ZMA from BALCO, I have to say in 1999. And, like I said, I stopped taking ZMA from BALCO -- I still take it to this day from (nutrition products company) GNC -- from the beginning of 2001.” 
Could Marion Jones had verifiably and undeniably accounted for the financials and receipts to which she had admittedly transacted with BALCO to the satisfaction of the law whereby her records of purchase do not in any way suggest in whole or in part that a banned substance was shipped in return as a result of that business negotiation?
Could she demonstrate when she began purchasing products from BALCO? Did she write checks for those products or pay by means of credit card whereby a financial account could be made of those transactions? Had she or her attorneys of record ever requested a verification of transactions BALCO had with its clients up to – and including – those transactions which involved illegal drugs in the form of steroids for the sole and explicit purpose of separating herself from any and all presumption of guilt or association with the illegal affairs which were conducted during the same time frame as she received said products?
Had Marion Jones, herself, ever discussed on record to any investigative unit – USADA included – the statements Graham made of BALCO packages arriving to her home which she, consequently – according to him – did not open? Had she discussed with anyone or any investigative unit pursuing matters in this case where the packages originated, from whom and on which dates? Had she asked to have the BALCO shipment records subpoenaed in an effort to disprove a potential false claim against her? Had she requested a record of waybills or air bills from the alleged carrier which can be utilised to clear her name of suspicion?
The answer to these questions is an unequivocal, “no”.
Why? Marion Jones was complicit in drugs-taking, and lied to Federal authorities chasing leads in that case. She would not have further involved them in matters which would have pointed fingers right back at herself.
Two questions arise, therefore: Did Marion Jones, who “has never received any illegal substances from Conte in exchange for her endorsement of his products", receive any illegal substances from Conte in the absence of any endorsement of his products?
Did Marion Jones, who had never received any “illegal” substances from Conte, ever receive any legal products from Conte’s supply of nutritional products?
A further question regarding truthfulness between Victor Conte and Marion Jones arises with the statement made on the SNAC website, one which begs response from Marion Jones’s counsel: If Marion Jones has had no connection to Victor Conte, had never used his products, nor had she ever endorsed his products, why does her name continue to be listed on his homepage as being an SNAC team-member to this day – despite a settled defamation lawsuit against him?
Jones is a big fan of ZMA. “I had a number of tests done on my blood at BALCO Laboratories,” says Jones. “I learned that I was really deficient in both zinc and magnesium.” ZMA fixed that, and she credits the supplement with helping her to sleep better and making her morning workouts more effective. “ZMA really has helped me,” she says. 
The website, http://www.snac.com/mag_zma_spectacular.htm, even lists Marion Jones as being a participant on the ZMA Track Club along with Chryste Gaines, White, Ramon Clay and Montgomery. The website continues to show photos of Marion Jones alongside Victor Conte and her ex-husband, C.J. Hunter.
Did Marion Jones have a liquidated damage clause for breach of the settlement agreement, specifically the perceived agreement to discontinue stating that Marion Jones has had any connection to Conte, or that she was a user of performance-enhancing drugs, to execute when Conte went back on record following her “A”-sample analysis stating that he had said all along that she had used performance-enhancing drugs?
No. She didn’t “win” the lawsuit.
One even more puzzling point which should be addressed is that Marion Jones’s attorneys, given to declaring Marion Jones’s innocence and complete lack of dealings with BALCO – even to the point of litigation, had not forced reported first-hand accounts from FLEX Magazine senior editor, Jim Schmaltz to redact a November 2005 story in which Schmaltz stated in common language that Marion Jones and C.J. Hunter both knew Conte, and worked with him.
Excerpted from that account:
When the case broke and Jones’ name was associated with BALCO, the track star at first claimed to have little association with Conte. FLEX readers know better. In the September 2001 issue, Jones is featured in an exclusive piece highlighting her connection to the world of bodybuilding.
As part of the FLEX team (yours truly was, at the time, FLEX’s senior editor), I travelled to the campus of North Carolina State in Raleigh to interview Jones, who was training under the tutelage of her then husband C.J. Hunter, a hulking cerebral shot putter who had schooled the young athlete since she was a little-known basketball player at North Carolina.
Also at the interview/photo shoot was Milos Sarcev, a veteran pro bodybuilder who often consulted with Conte to develop training programs for clients. One of those clients was present for the occasion: a little-known sprinter named Tim Montgomery.
Conte pitched the story, chose the time in accordance with Jones and invited me for an exclusive in early May 2001. At the time, Jones spoke glowingly of Conte and his sports supplements, and she expressed admiration for the efforts that bodybuilders put in their training and nutritional regimens, even suggesting that bodybuilding should qualify as an Olympic event.
It is a sad irony that Jones’ graciousness toward FLEX placed her in a context she is now desperate to disown. At the time, it seemed her willingness to sit down with FLEX appeared to be driven solely by her and Hunter’s allegiance to Conte. 
If this account is to be considered inaccurate – or false, one would imagine Marion Jones’s counsel – seeking opportunities to clear their client’s name and recover monies the cash-less former world champion had squandered on maintaining her lifestyle and paying attorney fees, would have either filed a lawsuit against the magazine for its inaccuracies; had they not sued for monetary pay-outs and had a motion filed to have inaccuracies in the story redacted – they would have instead required apologies published of equal prominence to the original libellous statements permitted.
Why? It’s quite simple, really: They had no basis upon which to have done so.
Instead, Marion Jones used the network, ABC, to sell her exoneration story with her all-inclusive never used drugs statement.
The same litigation assumption applies to the ESPN The Magazine piece in which Conte discussed in detail his having provided Marion Jones performance-enhancing drugs.
They didn’t touch that one, either.
As a matter of fact, SNAC, on their internet site, had printed the entire FLEX Magazine story in its entirety.
And, yet, one more time, Conte associated Marion Jones with BALCO, with no action taken either by Marion Jones or her attorneys on her behalf:
Nor did her attorneys force an error correction from the San Francisco Chronicle when it ran a story that Marion Jones and Montgomery had received steroids from Conte and BALCO.
Major league baseball player Curt Schilling, a pitcher for the Boston Red Sox, stated during a television show regarding illegal BALCO products being administered to two baseball players he named to host Bob Costas, that inferences of guilt should be met with denials, and incorrect information written about someone rectified.
Even more astonishingly, in their sole pursuit to strictly nail Victor Conte for his statements, Marion Jones’s legal counsel had simply brushed aside C.J. Hunter’s equally damaging statements, and stated that the law, itself, should deal with him; there was no defamation of character lawsuit lined up for Hunter.
With further regard to the “20/20” interview, Nichols called on Conte to answer three questions on a polygraph test in order to prove that Conte was guilty. Those were:
Whether or not Conte saw Marion Jones illegally take any performance enhancing drugs; whether or not Conte saw Marion Jones inject herself on a date specifically mentioned in the “20/20” interview; whether or not Victor Conte leaked information from the BALCO investigation to the media.
Concerning Conte’s admissibility of participation in either point number one or point number two, Conte would have self-incriminated himself and caused a legal hiccup in his defence case, United States vs. Victor Conte. Marion Jones’s counsel knew Conte had this standing over his head.
Legally, however, Conte was provided a temporary reprieve in the Marian Jones (sic) vs. Victor Conte defamation case to not speak on those two subject points. Conte was protected from having to provide specific and direct answers to possible questions which would have been raised about his involvement in points one and two above, as well as from answering questions in line with those which would have provided a strong supply of evidence needed to prosecute him in his criminal case.
With due respect to point number three, Conte had subsequently been legally cleared of any – and all – involvement in the leaking of information to the media – specifically the San Francisco Chronicle.
Had Victor Conte passed a lie detector test based on these three questions, would Marion Jones’s team have raised a white flag and conceded the fact that Conte’s assertions and claims were, indeed, truthful?
Had there been an inaccuracy in any or all of the stories and statements made in the media referenced above, you can bet Marion Jones’s team would have called for a thorough investigation, and, upon a positive finding, a request for fees to be rendered to their client for errors causing damage to her reputation. It was contended that it was reputation where Marion Jones was due to suffer the biggest blow; there were other Olympic Games in which she could participate, but only one, priceless, reputation to preserve.
Instead, her attorneys stated that it was Victor Conte, himself, whom they wanted to bring to justice for defaming Marion Jones. They went after no one else.
The San Francisco Chronicle article referenced above which cited Conte having provided Olympians Montgomery and Marion Jones drugs – the one which Marion Jones’s counsel had deemed as “wrong”, would only further weaken and diminish the power and veracity of the denial they made had Conte been able to answer questions one and two on a lie-detector test without affecting his criminal proceedings.
 Federal Rules of Evidence (Article VIII), Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial  Rediff.com, “Marion Jones admits supplement use”, 2004-06-17  SNAC.com, “ZMA’s Spectacular Year in the World of Sports 2002”  FLEX Magazine, “BALCO Revisited”, 2005-November  Times Online, “Up and running once more… the man who allowed…”, 2007-05-16  San Francisco Chronicle, “Olympians got steroids, feds told”, 2004-04-25  New York Daily News, “Schilling: No denial same as guilt”, 2007-07-26