The Bonds Prosecution

I’ve been beating this horse for some time now, but I link to Dave Zirn’s takedown of the Bonds prosecution because (a) it’s good; and (b) no one likes to feel alone:

Novitzky was given the green light by President Bush and Ashcroft to go for the jugular. In 2004, accompanied by eleven agents, he marched into Comprehensive Drug Testing, the nation’s largest sports-drug testing company. Armed with a warrant to see the confidential drug tests of ten baseball players, he walked out with 4,000 supposedly sealed medical files, including every baseball player in the major leagues. As Jon Pessah wrote in ESPN magazine, “Three federal judges reviewed the raid. One asked, incredulously, if the Fourth Amendment had been repealed. Another, Susan Illston, who has presided over the BALCO trials, called Novitzky’s actions a ‘callous disregard’ for constitutional rights. All three instructed him to return the records. Instead, Novitzky kept the evidence….”

It was a frightening abuse of power, all aimed at imprisoning a prominent African-American athlete. Yet despite the landfills of trash, the government’s case always rested on a flimsy premise. Bonds’s contention under oath was that anything illegal he may have ingested was without prior knowledge. The only person who could contradict Bonds was his trainer and longtime friend Greg Anderson. The government pressed Anderson to give testimony. He refused, citing a promise made by the feds that he wouldn’t have to testify after pleading guilty to steroid distribution and money laundering in 2005. The feds stuck him in jail for thirteen months to soften him up, but he didn’t crack.

My only quibble with the article? Zirin goes with an Old Man and the Sea analogy. I prefer Moby Dick.

In any event, I’ve said it before, and I’ll say it again: Anderson’s testimony was the prosecution’s only hope. They’ve known that for years, and they’ve known that he won’t provide it for almost as long. In its absence, this case should have been dropped a long time ago.

(link via BTF)

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  1. Jason @ IIATMS said...

    I liked the Old Man and the Sea angle.  But the whole article was very, very good.

    My question is this: Can the gov’t just walk away from this sinkhole?

  2. Craig Calcaterra said...

    Technically they could.  They could simply drop the case.  Practically speaking, it would be extrmely difficult, both for sheer political reasons—no one ever wants to admit that they effed up—and because it could create problems down the road in the form of pissing off Judge Illston for wasting her time, which she may or may not take out on prosecutors in other cases, etc.  In short, it’s kind of complicated.

    What they could do—and which some have specualted about—is that they could try to appeal her evidentiary rulings from last week, which would delay the trial for quite a while.  The success of that appeal is highly doubtful—for one thing it could be ruled as premature, and for another, the trial judge is given a lot of deference in evidentiary rulings, so it may very well lose.

    But what such a gambit would accomplish the the buying of time, and an opening for the prosecution to walk away from the case a little less obviously by citing unfair evidentiary rulings or whatever.

    The key to all of this is to remember that while we tend to think of them as somehow different, the government is just like any other party in litigation.  They’re worried about ego and perception and all of the other things that drive our decisions.

  3. James said...

    I’m completely ignorant of the law, but this quote struck me: “[Anderson] refused, citing a promise made by the feds that he wouldn’t have to testify after pleading guilty to steroid distribution and money laundering in 2005.”

    If this is true, would he have ground to sue upon release from prison? Is the imprisonment legal? What was the justification and the actual terms of his 2005 plea?

    Wouldn’t it be delicious irony if Anderson sued the feds (or whoever) and won, or settled for a huge amount outside of court grin

  4. pete said...

    Another vote for Moby Dick (one of my favorite novels, if you can get past the whaling encyclopedia in the middle).

    I don’t see the government walking away from this, and I don’t know if I want them to at this point. A dropped case would leave a lot of casual spectators with an OJ Simpson feeling (“He’s guilty, but he bought his way out of it”).

    I’d much prefer a crushing, dramatic defeat for the government, preferably with ESPN showing highlights of Judge Illston berating the prosecution. (I can dream, right?)

  5. Craig Calcaterra said...

    James—I think Anderson uses that as his moral justification, but I don’t think it holds water.  I have a hard time featuring the prosecutors giving him some actual promise that he wouldn’t have to testify, because they simply don’t do that.  They make people under mob death warrants testify and create whole new lives for them when they do.  Maybe somone said that they didn’t think he’d have to testify or said that they “hope” he wouldn’t have to testify, but no way did someone make an enforceable agreement to that effect.  Indeed, I don’t know that it would be legally valid even if they did.  A court can compel (or, in this case, try to compel) testimony. The prosecution can only offer so much.

  6. Andy said...

    They can’t prove the case without Anderson, but I think they can rightfully believe that Bonds lied and that Anderson knows.  I don’t blame them for not wanting to give up and let Bonds and Anderson both walk.

  7. pete said...

    Craig, a question:

    The article cites Judge Illston as having said that “jailing someone twice for refusing to testify would be beyond the pale”, and I’m curious as to how these things usually work. I was under the impression that (unfair as it seemed) someone could be jailed indefinitely for refusing to testify.

    How long can someone be jailed for refusing to testify, and who determines the length? Is jailing someone twice for refusing to testify as rare as the article makes it sound?

  8. Conor said...

    I agree with Andy. Even if the government can’t win I think they need to go through with it to make Bonds’ life as difficult as possible. Lying under oath when you have complete immunity is a terrible offense that should be discouraged at all costs.

    And I don’t believe the Feds goal was “imprisoning a prominent African-American athlete”, that’s pure embellishment and hyperbole. Their goal was BALCO and other steroid DISTRIBUTORS. If they wanted to nail the users, why would they have given them immunity? But once Bonds lied to them, they were determind to punish that action, and frankly, I agree. Hell, I’m pissed off that Palmiero isn’t facing the same charges.

  9. James said...

    The difference in the Old Man and the Sea and Moby Dick, as pointed out by Zirin, is the outcome for the hero.  I like Les Miserables.

    This is not a case that should have been dropped, this is a case in which there never should have been an indictment (as a baseball prospectus law writer stated, the feds would NEVER indict relying on just one witness, but he was clearly incorrect).  The decision to indict was irresponsible but the decision was made by someone departing the office right before he left.  They knew everything they had was probably inadmissible hearsay (and subject misinterpretation) from day one.

  10. Craig Calcaterra said...

    I agree that Zirin’s line about “African American athlete” is a non-seequitor and is irrelevant to this analysis.

    I also agree that Bonds’ offense—lying to a grand jury, which on a personal level I suspect he did—is worthy of prosecution.

    My problem with this has been the handling of the prosecution.  At the outset, whoever was asking the questions at the grand jury screwed up the record terribly. Bonds was allowed to ramble.  He was allowed to answer two-part questions with one word, muddying up the transcript further.  He made it clear that he didn’t understand certain terms the questioner was using (or at least pretended to) and no effort was made to clarify.  I wrote a post with my specific criticisms about this early last year (Bonds Before the Grand Jury).

    So you begin with a shakey record.  OK, we deal with that as long as we can bring the evidence to bear in prosecuting him.  Ooops, but wait. We can’t get Anderson.  That’s a huge problem, and it’s not one that is necessarily the fault of the prosecution’s, but it is theirs to solve.  There are means to try to solve it: negotiation; incarceration, and the reasonable application of pressure.  It didn’t work.

    At that point—with a terrible record and no means to supplement it with first-hand evidence -the prosecution had to make a choice: they could press on, or they could cut bait.  They pressed on, and the manner in which they’ve done so has been both embarassing and appalling. Raiding his mother in law’s house. Sending spies out to get his wife to talk. Leaking, I believe anyway, the A-Rod test results in order to get the subject of positive tests out in the national media so as to supplement for not being able to get Bonds’ specific test into evidence.  And that’s before you go into the expense of all of this.

    The ultimate power held by the government is not its ability to prosecute as such, but the tremendous discretion and tools at its disposal to help with the effort.  Given the specific evidentiary hurdles—some self-inflcited—facing the prosecution, they should have exercised discretion.  Instead, they put their foot to the floor in terms of pressure, with zero results, and much in the way of heavy handedness.  I find that aspect of all of this distatsteful and sad.

    So yes, prosecute Barry Bonds. But do it well and do it right, because the example of the government exercising its prosecutorial power well and right is just as important—and I’d say more important—than whatever example Barry Bonds in prison is supposed to serve.

  11. Mark Armour said...

    When Bonds gets off, it will not be a good day for the justice system.  Perhaps the prosecutors don’t deserve a conviction because of the way they handled the case, and perhaps we should cheer that they will get their comeuppance. 

    But I will not cheer.  I will instead be angry at the prosecution for allowing someone to get away with lying to a grand jury.

  12. Craig Calcaterra said...

    Maybe we’re splitting hairs here, Mark, but I think an acquittal would make for a good day for the justice system itself because in my view the point of the system as constructed is to ensure that people are only convicted when the government meets its considerable hurdles.  Anything that incentives the government to be fair and thorough in the course of prosecutions is a good thing, even if in the immediate case (i.e. Bonds walking) justice is not necessarily being done.

    But to be clear: I won’t cheer either.  I don’t much like Bonds and do believe he lied.  I’m just willing to let him get away with it if doing so works as a corrective to ill-deployed government power.

  13. Mark Armour said...

    I agree with you, Craig.  I don’t know the particular personalities involved, but I hope a few people lose their jobs over this debacle.

    I do find Bonds to a remarkable person.  Of the three big names ratted out in recent years you have Rodriguez grovelling, Clemens brazenly fighting his case, and Bonds saying “#### you.”  I would likely do the A-Rod, but there is a certain charm in Barry.

  14. Pete Toms said...

    Mark, I find Bonds’ unrepentance (is that a word?) appealing also.  The players’ employers, union, customers (fans) and media were all cool wiht this for many years.  For all of us (I’ll add Congress and the federal govt to the aforementioned group) to suddenly find religion and waggle our sanctimonious fingers at these players is distasteful.

    BTW, Zirin has a blog “Edge of Sports” that is consistently good.  It’s not really a blog, he updates it about once a week, but good stuff.

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