Keith Scherer is a federal criminal defense attorney. He also does a lot of urinalysis drug cases in military court. He contributed the legal analysis to Will Carroll’s The Juice, and he is a longtime contributor to Baseball Prospectus. THT asked him to comment on some of the questions that have popped up in the wake of the Barry Bonds indictment. The questions are derived from actual questions he had been asked recently and issues discussed among fans and media.
Bonds’s attorney keeps saying the government has been after his client from the beginning. Is it true?
In the BALCO case, Bonds was offered immunity. The U.S. Attorney’s office doesn’t offer immunity to the target of an investigation. From the prosecution’s point of view, Bonds’ reputation was collateral damage; he was not their primary target.
By seeking this indictment, are they selectively prosecuting him while ignoring others who didn’t come clean?
At least two other people—Trevor Graham and Tammy Thomas—have been indicted for lying to BALCO investigators or the grand jury, and Marion Jones has already pled guilty to lying.
But aren’t they coming down harder on Bonds than they did on the people who leaked the grand jury testimony?
The “people” who leaked the testimony was actually one person. Contrary to public perception, the source of the leak wasn’t someone on the government’s team; in fact, it was an attorney for one of the BALCO defendants. The attorney was convicted and received a sentence of 30 months in jail. Bonds, on the other hand, would likely face a sentence of only eight to 12 months. The charged offenses carry a maximum sentence of 30 years but you can ignore that. Realistically, he’s looking at more time than the people who cooperated, but probably not more than a year.
An indictment doesn’t mean anything, does it? Prosecutors can get a grand jury to indict a ham sandwich.
Indictments are not hard to get, that’s true. One of the obvious reasons for that, a reason that a lot of people overlook, is that when it gets to that stage, the government usually has the goods on the bad guy. An indictment, as you probably know, means that the grand jury thinks there’s probable cause to believe the defendant committed the crimes. Probable cause is not a high standard to meet.
But think about it: It does a prosecutor no good to ram a bad case through the grand jury, only to lose it at trial. The U.S. Attorney’s office, unlike some state and military prosecutor’s offices, never settles for probable cause. They approach the grand jury aiming to establish proof beyond a reasonable doubt. Their goal is to come out of the grand jury with evidence so overwhelming that they can force the defendant to take a deal. Federal prosecutors could get a bad case indicted, but it wouldn’t be worth their time.
But is the case against Bonds weak? The defense attorneys keep saying that.
The U.S. Attorney’s office isn’t perfect, and federal prosecutors lose on occasion, but they never bring a weak case to trial. This is especially true in a celebrity case like this one, one that is being overseen by the highest levels of authority. A loss in the Bonds case would be a career killer, and the prosecution wouldn’t risk taking this case to trial if it was as weak his Michael Rains says.
Bonds’ lawyers are doing a patch job on his reputation as much they’re defending him on the legal merits, so take everything they say with a lot of salt. It’s a California case, with all the grandstanding you’d expect, so don’t take the lawyers’ public pronouncements too seriously. More importantly, keep in mind that the defense attorneys have not seen yet what the grand jury saw. They don’t know what the government’s case is, so there’s really no reason to believe them when they say the case is crap.
But it took prosecutors four years to persuade the grand jury to indict Bonds.
No it didn’t. Bonds testified four years ago, but the grand jury didn’t begin investigating him for perjury and obstruction until early in 2005, and there have been reports that the case could have been indicted a year ago. Among other things, there were political reasons for waiting, such as the lead prosecutor being a casualty of the Alberto Gonzalez firing scandal.
That’s still a long time. Why did it take so long?
It really isn’t a long time. Grand juries are often out that long, and it’s not a big deal when they get extended, or when the prosecutors present the case to a new grand jury in order to buy more time to develop the case.
What was the grand jury doing all that time?
There is a lot of misunderstanding about how a grand jury works. It’s not as if they were locked in a room with the prosecutors eight hours a day for nearly three years. You can’t think of a grand jury the same way you think of a trial jury. For one thing, a grand jury only meets only once or twice a week. For another, a grand jury will investigate more than one case or one target at a time. In this case, we know that the grand jury was investigating Marion Jones as well as others.
Lastly, the grand jury reportedly had a ton of material to go through: bank records, phone records, emails, lab reports, and other documents, in addition to hearing testimony from numerous witnesses. There is nothing unusual about how this grand jury did its business.
Did Greg Anderson have anything to do with why the indictment took as long as it did?
No doubt. The question is whether the government needed to wait. There is no way the government pinned its entire case to Greg Anderson’s cooperation. The U.S. Attorney’s office would never do that. However, Anderson’s cooperation would have been the fatal blow—that’s obvious, isn’t it? The prosecutors probably believed that if they had Anderson’s cooperation, Bonds would have had to give up. He would have taken a plea deal, and everyone would have been spared vast sums of money and time.
In light of that, it made sense for the prosecutors, judge, and grand jury to wait him out. Once the prosecution and grand jury became convinced that he would never testify, they decided to go forward with what they already had, and they returned the indictment.
Did the prosecutors lie when they told the judge Anderson’s cooperation was necessary?
The question assumes that the judge jailed Anderson for civil contempt solely because the prosecution said that without his testimony the case couldn’t go forward. That’s the assumption, but again, the U.S. Attorney’s office would never pin its entire case on the cooperation of one witness, certainly not in a high-profile case and not with a witness who had publicly sworn he would never cooperate.
We have no real idea what the prosecutors told the judge, but even if they said, at the time, that Anderson had essential information, it could be that by last week a) they had enough even without him, or b) they were able to develop new evidence during the time he was in jail, so that they no longer needed his help.
The indictment doesn’t say anything about tax evasion. Why not?
We don’t know. Unlike the defense team, the prosecutors don’t talk to the press, so we’re going to have to wait to see what happened with the tax issues. It’s possible that Bonds will face a separate indictment that will deal with tax evasion. That would make sense, since the tax issues have nothing to do with Bonds’ grand jury testimony, BALCO, or drugs.
If it turned out that the tax case wasn’t solid, the prosecution might have decided to let it go. A smart prosecutor wouldn’t give the defense a chance to distract the jury from a strong case with a weak one. In fact, the U.S. Attorney’s office has a policy of only charging the most serious, readily provable offenses, so if the case was weak they probably would have let it go.
Yet another possibility is that the tax case wasn’t quite serious enough to warrant inclusion in the indictment. The amount rumored to be in issue is between $50,000 and $100,000—unreported income from memorabilia sales, autographed baseballs, etc., used to finance his affair with Kimberly Bell. If that figure is correct, assume that about one-third of that would be the tax “loss” to the government. That’s a relatively small amount; an unofficial standard is that tax losses of less than $40,000 rarely result in criminal prosecution, and Bonds’ loss would have been under $40,000.
But isn’t tax evasion more serious than what Bonds was indicted for?
In what sense is tax evasion more serious than lying to a grand jury? In terms of moral culpability, judges and prosecutors would consider lying to a grand jury to be far worse. In terms of legal jeopardy, comparing one offense to the other, we can’t really answer that until we know how much the tax loss was. It’s safe to say, though, that in the context of this case the lying would be far more serious in the eyes of the court and prosecution.
According to the indictment, the government has forensic proof that Bonds used controlled substances. Victor Conte said there may have been a mix-up at the lab.
It’s not likely. Conte claimed that BALCO doesn’t have a rigorous system for ensuring the integrity of the specimens it tests for its clients. That’s hard to believe. World-class athletes pay his company a lot of money for two things: one, to help them engineer their bodies; two, to keep it a secret. There is no way to accomplish those things if you don’t keep scrupulous control over the samples.
It’s a simple process, a checklist procedure followed by tens of thousands of people every day around the country. Urinalysis programs are run very smoothly and the incidence of error is extremely low. You would think that’s especially true when you’re handling small batches for elite clients. On the testing end, Bonds’ specimen was tested at Quest Diagnostics, one of the “big three” labs in the U.S. Quest has an excellent reputation for the integrity of its analysis and quality controls.
Is it possible that someone may have tampered with Bonds’ sample?
“Tampered” really means that someone slipped metabolized controlled substances into the specimen, or swapped Bonds’s clean specimen for a dirty one. If someone spiked or swapped a BALCO specimen, it would have been done by someone at BALCO or Quest. Why would someone at BALCO be spiking the client’s specimen, even before the feds were ever on the case? And if the client’s personal data is kept secret, how would someone at Quest know which sample belonged to Bonds?
There doesn’t seem to be any real chance of a frame-up. Given that the specimens were collected privately and securely, for profit and with a premium on protecting privacy, there doesn’t seem to be much chance of a mistake either.
Assuming Bonds can find a team, will be available to play baseball in 2008?
Yes. Unless Bonds takes a deal, his case won’t go to trial before the end of the 2008 season. It can take several months—often more than a year—to bring a relatively simple case to trial in federal criminal court. Even when both parties expect that the case will eventually end in a plea, it can take that long to get to it.
Why will his case take so long? We’re sick of it already.
As a media event it has grown tedious, but as a legal event it’s just getting started. In Bonds’ case, there are likely to be tens of thousands of pages of documents—lab reports, bank records, phone records, emails, and so on—and it will take the defense months to analyze them. There might also be wire recordings and transcripts, and other kinds of non-documentary evidence, and it will have to be analyzed. In addition to the time it will take to review the government’s evidence, you can expect many months of pretrial motions, contested hearings, status hearings, and scheduling delays. The defense is going to be very aggressive, especially since this case, win or lose, is as much about rehabilitating Bonds’s public image as it is about defending the case.
If the case ever gets to a contested trial, it will involve all those documents, plus numerous lay and expert witnesses, and several more motion hearings. Once the trial is over, if Bonds has been convicted the court will take some time before holding the sentencing hearing. There is almost no chance this case will be resolved before the end of the 2008 season, so if a team wants to use Bonds, he’ll be available.