May 22, 2013
Who is Shyster?
Or you can search by:
Most Recent Comments
Sam Zell’s Nightmare Continues (11)
William S. Stevens: 1948-2008 (22)
Teixeira’s Options (18)
Cole Hamels Meets Talk Radio (23)
Appropos of nothing (4)
Shyster's Daily Circuit
Joe Posnanski Blog
Cot's Baseball Contracts
It IS About the Money
Baseball Think Factory
MLB Trade Rumors
Way Back and Gone
Bats -- NYT Baseball Blog
The Biz of Baseball
The Daily Fungo
The Common Man
Jorge Says No!
Baseball Over Here
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
Kevin Calhoun said...
As Craig has pointed out with regard to Clemens, defamation cases are difficult to win under U.S. law, especially for public figures. And a loss would hardly be viewed, as Mr Marshall suggests, as a restoration of reputation, even if it occurs on technical grounds after evidence discrediting the statements of the defendants has been presented. It’s a bad option for Clemens and a bad option for Bonds.
Posted 04/05 at 01:40 PM
Jack Marshall said...
I respectfully disagree with Craig. It’s a bad option if discovery is going to make you look terrible, as in the case of Clemens. It’s a bad option if you don’t have nearly unlimited resources, unlike MLB superstars who have been earning 8 figure contracts for years. It’s a bad option if in fact the supposedly libelous publishing is substantially accurate, as I am convinced it is the case with Bonds, because then you’re in Oscar Wilde territory. It may even be a bad option if ignoring the supposedly libelous work will result in its claims being forgotten or marginalized, as with many other celebrity “exposes.” But that was never going to happen with “Game of Shadows,” because of the credentials and credibility of its authors. “All the President’s Men” didn’t fade away, either.
If a libeled party has the libelous party dead to rights, as Bonds defenders would have it, then the libelous party will usually settle, publicly vindicating the plaintiff to some extent, because the litigation is burdensome on both sides. The National Enquirer has settled a number of such suits with public figures, and none of its stories were as damaging as “Game of Shadows.”
If I were Barry Bonds, with his financial resources, and as pure as the driven snow, labeled a greedy, dishonest and felonious user of multiple banned substances, I would consider it a no-brainer to invest a few million dollars to get my good name back. And it would be a good investment. Different guidelines apply when you have money to burn.
Posted 04/05 at 03:34 PM
Kevin Calhoun said...
Forgot to add, it’s also a very bad idea to bring matters before a civil court that are scheduled subsequently to come before a criminal court. There would be lots of ways inadvertently to improve the case of the criminal prosecution, even if the accused is entirely innocent. Why risk any of that?
Mr Marshall’s views notwithstanding, I would agree with Craig that Mr Bonds and his attorneys made absolutely the right decision not to challenge the authors of Game of Shadows in a court of law, regardless of the accuracy of that book. His lack of action against them—actually his withdrawal of his limited action against them—says nothing whatsoever about the authoritativeness of that book’s allegations. There’s just too much risk in taking action and too little gain, and that’s all we can read into it.
Mr Marshall - if you’re placing lots of weight on those allegations and are urging others also to do, it might be a good idea to list them. What exactly does that book allege that hasn’t also been put in play in the perjury investigation?
Posted 04/05 at 06:10 PM
Posted 04/05 at 09:03 PM
Jack Marshall said...
Well, let’s see…“Game of Shadows” cites various sources to allege that Bonds used Stanozolol, “The Cream, ” “the Clear,” Trenbolone (a cattle steroid), HGH, Insulin, Testosterone decanoate, , Clomid (a drug that restores serum testosterone levels following steroid abuse), Deca-Durabolin, and Norbolethone.
As with all near-certainties based on a complex mass of circumstantial evidence, any one bit can be deconstructed and questioned. This is how O.J. got acquitted, and Novitzsky is Bonds’ Mark Fermun. But as with Simpson (or Stevens—-remember him?), while any one indicia of guilt can be challenged, the odds that ALL of them are manufactured or misleading or innocent are ridiculously long. Heck—-forget about “Game of Shadows” for a minute. A great ballplayer, one who has displayed a consistent contempt for authority, rules and others in his sport, suddenly hulks out, prompting expert observers to note that he has the physical characteristics of a steroid user. He becomes an order of magnitude more powerful than he has ever been, AFTER the career and age points when ALL previous hitters in a hundred years of baseball history had begun to decline, and NONE had improved to s significant degree. He does this while being trained by a steroid advocate and user, who is also his close friend, and who later is convicted of steroid-related offenses. He also happens to be a client of a supplements company that has supplied steroids to other athletes, many of whom have admitted as much. In his grand jury testimony (illegally leaked, but that is no credit to the player), he unconvincingly argues that he took “The Clear” thinking it was “flax seed oil.” His trainer/friend, ordered to testify to a grand jury about the player’s steroid use, chooses instead to remain in jail. The player’s lawyer gives an interview in USA Today in which he says that he “sure hopes” his client “takes care” of the recalcitrant witness.
Is it theoretically POSSIBLE, given all of this, that this player didn’t use steroids? Sure. Would any unbiased individual who wasn’t invested in another conclusion think it is LIKELY or PLAUSIBLE or LOGICAL—- I would even say conceivable—-that this individual player didn’t use steroids? I don’t think so.
Now add the “Season of Shadows” allegations to that.
Posted 04/06 at 11:58 AM
Not sure who you’re arguing with, or on what point. My only point is that it’s not fair to judge Bonds based on his non-response to Game of Shadows. It lays out most (nearly all?) of the evidence turned up in the BALCO investigation regarding steroids and Bonds, and Bonds has wisely waited for the indictment and the trial to respond to that evidence.
None of this, of course, speaks to your earlier points about the wounded integrity of baseball and Bonds’ violations of basic fairness. Although you wish to portray your views as entirely logical, that portion of them at least are very much in the realm of the personal, both in your assessment that fundamental and possibly sacred things have been damaged and in assigning responsibility for their damage. I already know your opinion in those areas, so there’s no need to repeat them.
Posted 04/06 at 03:22 PM
Jack Marshall said...
Good. I’m sure everyone is grateful for THAT.
Posted 04/06 at 03:57 PM