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Thursday, April 02, 2009
Will Barry Bonds get the Ted Stevens treatment?One of the bulwarks of the American justice system is that the ends of a prosecution -- putting someone away for doing something wrong -- do not necessarily justify the means of doing so. In fact, I would argue that the means are often more important than the ends, particularly in high profile cases which shape citizens' impressions of our legal system. Because the power of the state is so great and its impact on the lives of its citizens so potentially devestating, I would rather see a guilty person go free than law enforcement or prosecutorial misconduct be rewarded or legitimized. The new Attorney General apparently agrees with me:
The Justice Department moved on Wednesday to drop all charges against former Senator Ted Stevens of Alaska, who lost his seat last year just days after being convicted on seven felony counts of ethics violations. The case was one of the most high profile and bitterly fought in a string of corruption investigations into current and former members of Congress. But Justice Department lawyers told a federal court Wednesday that they had discovered a new instance of prosecutorial misconduct, on top of earlier disclosures that had raised questions about the way the case was handled, and asked that the convictions be voided.
I didn't follow the Stevens case all that closely, but my sense of things was that the withheld evidence was not necessarily anything that would exonerate Stevens, even if it was stuff that the defense could have used to attack the witnesses against Stevens. Put differently, Stevens may still very well have broken the ethics' laws, but the government has made the judgment that they're willing to let the conviction drop because the process of obtaining it was obviously tainted.
Hmm, where have we heard this before . . .?
Mr. Novitzky’s detractors, mainly the defendants and their lawyers, say he is biased and unfair. They say he has a vendetta against Mr. Bonds, is seeking fame and financial gain from the case, and puts words into suspects’ mouths. They say he has lied in sworn reports, including on the initial search warrant affidavit that kick-started the investigation of the Bay Area Laboratory Co-Operative and its many famous clients.
Those accusations against Novitzsky are old, and they have not derailed the case -- bad evidence and Greg Anderson's refusal to testify have done that -- but it's worth noting that the misconduct of the Stevens' prosecutors did not prevent that case from going to trial either. There, as in most tainted prosecutions, the scrutiny came later.
The Bonds' prosecutors has bought some time by appealing the judge's evidence ruling. In light of the U-turn on the Stevens case, however, one wonders if, in addition to researching and writing an appellate brief, they also aren't reflecting on whether the whole enterprise is worth the trouble in the first place.
Posted by Craig Calcaterra at 10:50am
Sounds like a good Oliver Stone movie to me. Seriously, I agree, prosecutors can be holier-than-thou and without accountability at times, to the risk of everyone.
Posted 04/02 at 11:58 AM
Would seem to be politically easier to drop a case before an actual trial than to vacate a 7-count conviction! And in Bonds case, it seems like that dropping the case would avoid further prosecutorial misconduct - relying on witnesses who, from the background we’ve had the opportunity to read about, appear to be the type who would fabricate testimony to suit the prosecutors’ case isn’t a great strategy.
Posted 04/02 at 01:19 PM
In the case of Stevens, it’s just the usual scumbag political lawyers looking out for one another.
Posted 04/02 at 01:43 PM
Craig Calcaterra said...
Ditmars—I don’t think you could be more wrong about that. Traditionally, no group of lawyers looked out for each other more than the prosecution/government lawyers’ bar, and no groups of lawyers with more antipathy for one another than the government bar and the defense bar. No matter how disparate their interests on a given case, you never see one set of government lawyers doing anything but walking in lockstep with another, and rarely if ever would they roll over for the criminal defense bar, even if they thought maybe they should.
With the Stevens thing, the DOJ administration has explicitly thrown DOJ prosecutors under the bus. And before you say that it’s merely a partisan thing, remember, these are Obama administrators dropping a case against a Republican former senator. This is some rare stuff indeed.
Posted 04/02 at 01:50 PM
Well, then just call me cynical. Would you feel better if I said scumbag politicians instead of scumbag lawyers?
Posted 04/02 at 03:04 PM
Jeff Mathews said...
So I can only get a square investigation if I’m either a multimillionaire HOF athlete or a senator? How does that shape my impression of our legal system?
Posted 04/02 at 04:02 PM
Jack Marshall said...
Correct Craig—and yet the AP, many news outlets, and several GOP Senators are saying and writing that Stevens has been “exonerated”—-though there is little question that he took what amounted to bribes, lied on the stand (that “loaned” vibrating chair—-loaned for 8 years!), is corrupt as hell, and proud of it.
This is like saying the homicidal maniac sprung in “Dirty Harry” because Harry tortured him to get evidence magically became a model citizen as a result of Harry’s misconduct.
I agree with you: if the prosecution of Bonds is unethical, throw out the case. But that should only make people feel worse about the Feds, not better about Bonds. Sadly, I have doubts that most fans and sportswriters will comprehend that, especially after the reaction to the Stevens developments. And I have NO doubts that Barry will view it as “exoneration.”
Maybe he’ll run for U.S. Senator.
Posted 04/02 at 04:41 PM
lisa gray said...
i don’t know why the prosecutors NEEDED to **** up the evidence in the stevens trial in order to get convictions. something about that old expression - gilding the lily
but with bonds, there IS no evidence except the supposed drug calendars and given novitsky, i have ZERO reason to believe that they aren’t forged. in fact, the evidence against him is so bad it is nothing but a joke.
and no i do NOT consider any positive test for THG to be proof that he used steroids because if/when he used it, not only was it not illegal, but it wasn’t even classified as a steroid.
but unfortunately, the way things are with the steroid hysteria, anyone accused will now be determined to be guilty simply because they were actually accused
Posted 04/02 at 11:59 PM
Jack Marshall said...
Lisa, that point of view continues to mystify me.
There is no reasonable doubt that Bonds used PEDs, and if he (almost certainly) hadn’t paid off his trainer/pal/dealer (a felony itself) not to testify (or what do you think the guy is so willing to sit in jail for?), he would be dead meat. Sure: even though the other Balco athletes confessed, it makes sense that the one guy on it whose career, appearance and associations scream steroids is an innocent victim. I’m sure the San Francisco Chronicle reporters were forging evidence too. Please.
Why are otherwise rational people so invested in denying the elephant on Barry Bonds’ back? You all remind me of the GOP House members who refused to regard John Dean’s testimony as sufficiently reliable to impeach Nixon, absurdly saying they needed a “smoking gun.” It’s like creationists arguing that because you can’t witness evolution as it occurs, it’s a “theory.”
How could anyone still have a reasonable belief that Bonds has been framed? I remember being impressed with Bill James’ careful dissection of the evidence against Pete Rose, as he concluded that there was inadequate proof that Pete gambled on baseball. Of course, Rose WAS in fact guilty, and all of Bill’s elaborate explanations of the betting slips and how the numbers and dates didn’t match up—-which actually would have probably guaranteed an acquittal in a trial—- meant little. But, unlike James’ defense of Rose, the arguments that all the evidence against Bonds can be explained away are desperate and contrived.
Like those GOP House committee members, the Bonds defenders will wait until there is ZERO doubt, and argue that they were being careful and fair rather than biased and illogical. That day will come, and anyone who is intellectually honest knows it. I bet Bonds even knows it. I only hope the revelation comes before Bonds becomes HOF eligible, so I don’t have to keep hearing how he just happened, by a freak of nature, to be the only player in history who became an order of magnitude better after his 35th birthday, and that it was an accident that this occurred during a steroid boom in baseball, while his confidant and trainer just happened to be using and pushing the stuff on all his clients EXCEPT Barry, who just happened to be a client of the pre-eminent steroid distributing mill.
Posted 04/03 at 05:22 PM
lisa gray said...
let’s try to separate out what is and what is not relevant, shall we?
there are 2 separate issues about barry lamar
1 - he is being persecuted for supposedly lying under oath (although it is MORE than obvious that he shouldn’t have been called to testify against balco in the first place as he could not help secure convictions of anyone but himself. but I digress…) The crux of the matter is that he stated that he never knowingly used steroids.
Granting that he actually DID use THG, at the time it was given to him, it was neither illegal nor classified as a steroid and it is perfectly plausible that anderson told him that the substances were not steroids.
2 - there is absolutely zero proof whatsoever that barry lamar used any other androgenic compound - and i don’t consider DHEA or androstenedione performance enhancing chemicals.
The next issue is greg anderson.
I don’t guess you have had much of any contact with the prison population, but i have and Anderson’s story about refusing to help the very people who promised him they were through - it rings absolutely true to me, as well as to the other ex-inmates i know.
there have been quite a few articles written about the fact that the purpose of bonds’ supposed testimony was explicitly for thepurpose of trying to catch him in a lie about steroid use, not for the purpose of conviction anyone manufacturing/distributing/posessing illegal drugs.
i wasn’t alive during the watergate stuff, but i would NEVER EVER convict anyone based ONLY on the testimony of one other person, especially one other person who was ratting out someone to save his own ass. i have no reason to believe a rat. i want EVIDENCE, and i want GOOD evidence. and of course i know only too well that evidence is fabricated by prosecutors/LEOs - check out the scandal surrounding the houston police lab, all the false evidence, the false tests, the contaminated specimans, the absence of chain of custody. if you were one of the many falsely convicted people in houston, you would have quite a different viewpoint about the importance of properly collected evidence, properly conducted and videoed interviews and proper lab procedures.
exactly WHAT evidence is there that barry lamar KNEW that he was being given a steroid, let alone that he was actually given a steroid? and, by the way, i read the game of shadows, cover to cover, and the authors didn’t provide ONE shred of evidence, so let’s not go there, if you don’t mind.
you consider the fact that greg anderson gave OTHER people (who conte knew about) steroids proof that he gave barry lamar steroids (other than THG)?
then you would, of course, believe that since every single one of my friends drink alcohol, that i must drink alcohol too? that since every single one of my friends have children out of wedlock that my children must therefore be out of wedlock too?
the old birds of a feather argument
i don’t know whether or not THG had anything whatsoever to do with barry lamar’s stats from 2000-2003. and frankly, i don’t care real too particular much. i know that barry was a once in a lifetime talent, the likes of which i doubt i will see again, and i don’t think that comparing other athletes to him is valid.
but then again, i object to your policiy of picking out one of thousands of supposed sinners to vilify. i don’t believe there is a shred of difference between the rape of a vicious child murdering woman and the rape of a saint. rape is rape. and i don’t believe there is a shred of difference between barry lamar bonds using THG and ryan franklin using steroid of the week. and i will start thinking about having some respect for your position the day you spend as much ink vilifying each and every single athlete who used any steroid as you do barry lamar.
Posted 04/04 at 12:16 AM
lisa gray said...
interesting that you ignore victor conte, the guy who supplied the other convicted athletes, who INSISTS that he did NOT get any steroids for bonds.
interesting that you ignore the fact that conte, who couldn’t WAIT to rat out the rest of his clients, insists that novitsky invented a conversation which he conveniently didn’t bother to tape.
interesting that you ignore that fact that the 2 people who wrote the book that is supposed to PROVE that bonds used steroids are 2 people who hate bonds like hitler hated jews.
you seem to have a difficult time considering the source of information.
i didn’t read bill james’ defense of pete rose, although i did read the entire dowd report when it was available on line, so i can’t comment about his defense of rose. sorry.
Posted 04/04 at 12:23 AM
Jack Marshall said...
You’re kidding, right? Victor Conte is a convicted felon and creepazoid of the first water…his testimony would be worth a bucket of warm spit in any trial. Who cares what he “insists”? Roger Clemens “insists,” A-Rod “insisted.” I’ll take Novitsky’s word over Conte’s any day, and so would any objective analyst. Who says the authors of “Game of Shadows” “hate” Bonds? I’ve talked to them…what they seem to be interested in is finding out the truth. I live in Washington DC, and I’ve heard the “hate” argument be used by—-let’s see—-Nixon, Johnson, Carter, Reagan, both Bushes and Carter—-to discredit any journalist who has them nailed. Sorry—-that defense doesn’t “interest” me at all.
Posted 04/04 at 09:28 AM
lisa gray said...
no, not kidding at all. victor conte is most certainly a convicted felon who threw every client of his to the feds. BUT he denies that barry bonds is throwable? what, you think barry has some sort of hold over a man like him?
your term “creepazoid” more accurately refers to novitsky. you obviously have zero experience with bad LEOs, and novitsky is one of the absolute worst.
if you wish to disregard any argument which questions the bias of witnesses, be my guest. to misquote mike salfino (who is not referring to you) you obviously suffer from
i am sure you will accuse me of the same, as well as being a bonds “apologist”, a term which is deliberately and incorrectly used, especially by those who believe it to be the Final Putdown.
Posted 04/04 at 10:56 AM
Jack Marshall said...
We can hold the creepazoid competition at the proper time…I’m no Novitsky fan, but I’d be hard-pressed to think of someone more repellent and less reliable than Victor Conte. I can think of lots of reasons why Conte would vouch for Bonds, making things tougher for his rival creepazoid only being one.
The circumstantial evidence supporting the conclusion that Bonds is a steroid cheat (his career, his appearance, his personality, his grand jury testimony, his lame explanations, his failure to even try to repudiate “Game of Shadows,” his trainer, the conduct of his trainer, etc.)so wildly outweighs the few barely-plausible arguments raised by his defenders (you like “defender”? How about “enabler”? “Mouthpiece”?) that there is no need to ignore counter evidence. It’s minimal. Believe it or not, I gave Barry the benefit of the doubt for a long time, but as someone with no special interest in seeing Bonds confirmed or exonerated as being a steroid-user, I’m hardly a candidate for “confirmation bias,” of which I am well-aware and careful to avoid, thank-you.
Lawyers that I train and counsel love to play the “I don’t really KNOW (that my client is a fraud, is lying, is guilty, is about to commit a crime)even though any normal objective observer would say it’s obvious as the nose on his face” mind game very well—-I think it’s unethical, but at least lawyers are supposed to give their client every benefit of every doubt, and are paid to do so. Why anyone who is NOT Barry’s lawyer would play the same game, given the facts as we know them, remains beyond me, which is where this conversation started.
Posted 04/04 at 01:27 PM
Jack Marshall said...
Lisa…I read your first replay after I replied to the second. Sorry.
And of course, the second part of that reply illuminated your bias, which is simply the basic pro-Bonds rationalizations. You don’t think Bonds’ steroid use did more damage than David Segui’s? Ridiculous. Bonds’ steroid use warped the records of the game, encouraged players at all levels to do the same, and seriously wounded the integrity and reputation of baseball. Rape may be rape, but arson against a shack is not as serious as arson against a cathedral or a high rise, and illegal steroid use has degrees and different levels of damage. Who cares that Barry was a great talent without drugs? That excuses him? Bernie Madoff could have made plenty of money without running a scam. Jason Blair was a good writer. Great talents who cheat are more reprehensible than the marginal guys, not less.
You make the same generalization about prosecutors (the vast majority of whom ARE ethical and do NOT manufacture testimony and evidence) that you falsely accuse me of making about Anderson. Yes, I think it’s absurdly unlikely that Anderson, a child-hood friend of Bonds and a proven and convicted steroid advocate, user and dealer with his other clients 1) didn’t do the same for his highest profile client and pal, and 2) didn’t let said pal know he was a steroid user. Hence Bonds’ claim that he was given “The Clear” BY this steroid-head and still believed it was Flax seed oil is per se outrageous.
And you trot out the old “perjury trap” argument…love it. Shades of Bill Clinton. Know how to avoid a “perjury trap”? Tell the truth. The US justice system is NOT constructed with the sole purpose of framing Greg Anderson and Barry Bonds. And there is no plausible innocent explanation for Anderson’s refusal to testify. Either he doesn’t want to implicate his pal, or he has been promised a pay-off. Fear of a vast conspiracy to manufacture evidence to frame him? Who are you, Angela Davis? Howard Zinn? This is nonsense.
And by the way, I have been both a defense counsel and a prisoner’s advocate. Anyone who thinks defendants and prisoners are more reliable than prosecutors has some serious authority issues to deal with.
Posted 04/04 at 01:51 PM
lisa gray said...
dragging in the comment about “steroid cheat” serves no purpose. the question is quite simple - exactly what evidence exists that barry lamar ever took any steroid compound other than THG and exactly what evidence exists that he knew that THG was a compound that could be classified as a steroid?
answer - there is none,inasmuch as neither are reliable determinants of steroid use.
as for “facts” you claim to have, there are absolutely none whatsoever. i refuse to convict any baseball player of steroid use based on any statement by a corrupt LEO or by authors who accuse and refuse to provide any concrete evidence whatsoever.
you state “You make the same generalization about prosecutors (the vast majority of whom ARE ethical and do NOT manufacture testimony and evidence) that you falsely accuse me of making about Anderson.”
- no, i am making that accusation about the prosecutors involved in barry lamar’s trial as well as the obviously crooked LEO.
” Yes, I think it’s absurdly unlikely that Anderson, a child-hood friend of Bonds and a proven and convicted steroid advocate, user and dealer with his other clients 1) didn’t do the same for his highest profile client and pal, and 2) didn’t let said pal know he was a steroid user. Hence Bonds’ claim that he was given “The Clear” BY this steroid-head and still believed it was Flax seed oil is per se outrageous.”
- you still refuse to provide any evidence whatsoever that barry lamar was given any steroid-like compound besides THG and i keep reminding you that at the time THG was in use, it was neither illegal nor classified as a steroid and naderson COULD have quite honestly said that it wasn’t a steroid. seeing as how it actually wasn’t.
as to his making a fuss about the 2 books, i have been informed by many many lawyers that no public figure has essentially any chance of either repudiating any book nor of winning any libel suit and that even if the authors of that book had accused barry lamar of gang raping and murdering infants, he really had absolutely no recompense and his best tactic would simply be to ignore it. which is obviously what his lawyers told him to do and barry lamar, fortunately for him, can afford the best lawyers and he, being an intelligent man, has been smart enough to listen to them.
and speaking of ignoring, it is you who is ignoring all the voluminous evidence that novitsky is a corrupt and crooked LEO, which you brush aside.
i am thoroughly disgusted that you would consider it unethical that a defense attorney would ever give his/her client the benefit of the doubt. and you claim that you are an ethicist? please.
it is not the province of a defense attorney to act as judge and jury or to administer his/her own brand of justice, but rather to use all of his/her skills to help his/her client be found not guilty, or at least to receive the least sentence for the least crime possible.
as for you stating that i am dragging out a perjury trap argument, do explain exactly what use ANY testimony of barry lamar bonds could have been to convicting any BALCO person. answer - none. have you even read about the procedure? what attorney has informed you that barry lamar’s testimony was a necessary component for conviction of conte? do you have any idea how many attorneys, pro or anti barry, have agreed that the conversation that transpired at the grand jury hearings was, in fact, for the explicit purpose of trying to imprison bonds for perjury
“You don’t think Bonds’ steroid use did more damage than David Segui’s? Ridiculous. Bonds’ steroid use warped the records of the game, encouraged players at all levels to do the same, and seriously wounded the integrity and reputation of baseball.”
- certainly not. if it is your position that any player who uses steroids distorts records of the game, then segui is equally guilty of distorting records, is as manny alexander, matt lawton, jc romero, ryan franklin and alex sanchez. game data is game data, no matter from which player it is obtained. barry certianly hardly “encouraged all players to use” inasmuch as most players were using these chemicals decades before he started, and use certainly didn’t increase because of him.
that is, if you have any proof that use of steroids does, in fact, have any effect on statistics, either defensive or offensive. for any player you can point to and say - look at him, he got better, i can point to a player and say - look at him, he didn’t get any better or he got worse.
Posted 04/04 at 10:28 PM
lisa gray said...
arson against a shack is no different whatsoever than arson against a cathedral, unless someone is injured/killed. same exact crime. you just feel it is different because of the natures of the structures burned, but that is just your feeling.
and quite frankly, your insistence on judgement by feeling and not concrete evidence, then boasting of this as “ethical” scares the heck out of me. as for you being a “prisoner’s advocate,” all i can say is that if you volunteered to be an “advocate” of anyone i knew who was imprisoned, i would warn them to get shut of you as fast as possible, before you advocated them straight into the electric chair.
Posted 04/04 at 10:28 PM
There is no reasonable doubt that Bonds used PEDs
Given the state of the known evidence, a jury could indeed maintain reasonable doubt about his use of illegal PEDs. THG in 2003, the handling of BALCO blood tests, etc. Sufficient direct evidence just isn’t yet available to eliminate “reasonable doubt”.
Now, anyone could easily persuaded that he used them, and nearly everyone already has been. But that’s not the standard you cited.
and if he (almost certainly) hadn’t paid off his trainer/pal/dealer (a felony itself) not to testify (or what do you think the guy is so willing to sit in jail for?), he would be dead meat,
Once you’ve supposed that the man has committed a felony, the rest of your argument can hardly be viewed as impartial, no?
Posted 04/05 at 11:54 AM
Jack Marshall said...
Boy, Lisa, that Barry Bonds Kool-Aid must be gooood.
Please don’t put words into my mouth…I have enough of my own. I never wrote, thought, or said that defense attorneys shouldn’t give their clients the benefit of the doubt—-in fact, they are obligated to do so according to the Comments to the ABA’s Model Rules of Professional Conduct. I said that lawyers frequently use a dishonest standard to claim they don’t “know” what in fact they do “know.” It’s irrelevant to defense attorneys (regarding their clients’ guilt) anyway, because a defense attorney should defend a guilty client the same as he/she would defend an innocent one. As you should know. Barry’s attorney, on the other hand, sends messages via the media to imprisoned non-cooperating witnesses against his client , saying, “just hold on—-Barry will take care of you!” THAT he isn’t allowed to do. But he did.
I guess you just have a bizarre concept of “same.” The arsonist of a shack would not be sentenced to the same punishment as the arsonist of a cathedral. Magnitude if harm, financial, historical, counts. Of course Manny Alexander’s stats while juicing harmed the game less than those of Bonds. Bonds set records, changed the ranking of players’ lifetime statistics, perhaps even put some records out of reach by honest players. On this planet, that’s harm.
If Bonds were not afraid of what an open inquiry would show, he would have sued for libel simply to get an airing of the supposedly “hate” motivated book’s claims (hate would qualify as malice, you know.) He could afford it, easily. A trial could thoroughly discredit “Game of Shadows” if it were as insubstantial as you say (it isn’t): even if Bonds lost the lawsuit—-he’d make back the money in endorsements if his reputation were restored. But Bonds doesn’t do this because he knows a trial would expose him. He has never given a credible, no-hold-barred interview denying his use of steroids. His entire demeanor has been, “Prove it! Meanwhile, I’ll keep collecting more money and records.” He’s smart, all right.
I’m not sending Barry to JAIL based on “feeling,” which I suppose is your euphemism for logic, observation, experience, wisdom and common sense…I’m willing to concede that there may not be enough admissible evidence to convict him in a trial. I’m making a reasoned assessment, which is absolutely fair, just as I can conclude that O.J. Simpson and Klaus Von Bulow are murderers and that Bud Selig is a weasel. Life has no “innocent until proven guilty in a court of law” standard, nor a “beyond a reasonable doubt” requirement. But the Barry-defenders dishonestly (or ignorantly) maintain it does.
The final outcome is certain, you know: as with Rose, it may take years, even decades, for the truth about Bonds to come out to your satisfaction. And when there is finally confirmation that he broke laws, rules, and basic principles of fairness, people like me will say, “Who didn’t know that? It was obvious to anyone paying attention!”, and people like you will say, “Well, there was no way to know that until now.”
Posted 04/05 at 12:28 PM
Jack Marshall said...
Kevin: not to parse phrases, but legal reasonable doubt is a term of art, and I was using the phrase in the vernacular. Yes, I think it is unreasonable to doubt that Bonds used steroids. Yes, I think that there is probably “reasonable doubt” enough to acquit him in court. Trial-based reasonable doubt can only take into consideration admissible evidence. Outside of a courtroom, it may be reasonable to consider the weight of other evidence that doesn’t qualify for trial use.
But it was confusing for me to use the term ambiguously.
Posted 04/05 at 12:39 PM