The Clear

Yahoo!’s Jonathan Littman has a major story today about the legal status of “The Clear” at the time Barry Bonds was asked about it in the course of his grand jury testimony, and suggests that this fact may prove problematic for prosecutors:

It could explain why Barry Bonds’ attorneys believe the grand jury questions to him were impossibly vague and why the focus of the BALCO case veered from prosecuting distributors of illegal anabolic steroids and money launderers to catching world-class athletes lying about drug use.

Taking the Clear – the star drug of the Bay Area Laboratory Co-Operative – was not a crime, according to expert testimony included in grand jury documents.

Not only was the performance-enhancing drug tetrahydrogestrinone (THG) not specifically banned when athletes squirted “The Clear” under their tongues to gain an edge, the testimony also indicates that the drug wasn’t categorized by the Justice Department as a steroid until January 2005, long after the drug laboratory had been shuttered . . .

. . . “This case has been presented as Barry Bonds lying about steroids,” said Christopher Cannon, a San Francisco defense attorney with extensive experience in federal perjury cases. “The government’s theory is that he was taking the Clear. If the government knows the Clear wasn’t a steroid – then when Barry said he wasn’t taking a steroid, he was telling the truth.”

Well, partially. As I noted last year, Bonds was indicted for lying in response to numerous specific questions, and not all of them were of the “did you take steroids” variety which Mr. Cannon believes to be a problem in light of this new information. There were several other general categories of questions too, such as “did Anderson ever give you anything to take in a syringe” as well as questions about the years in which Anderson gave Bonds anything. The revised indictment setting forth the specific questions is here.

The key to remember here — and the thing that almost everyone reporting on this case forgets for some reason — is that this isn’t a prosecution of Barry Bonds for actually taking steroids. It’s a prosecution about him lying in response to specific questions in a specific setting. If it was the former, yes, the fact that THG wasn’t technically a steroid when Bonds took it would be highly relevant. Since it was the latter, however, the fact of it being classified as a steroid or not only has bearing on some of the counts Bonds faces. I guess the easiest way to think of this is to imagine that one of the questions to Bonds was whether or not he had ever taken Coca-Cola orally in the Giants’ clubhouse. If he said “no” even though he really had, it still would have been perjury despite the fact that Coke is street legal.

But while the facts set forth in Littman’s article may not render as serious a blow to the Bonds prosecution as his quoted experts imply, it does show how cynical and in many ways frivolous the prosecution of Bonds really is. Yes, it’s technically a violation of the law to lie about drinking a Coke under oath. One would have a right to wonder, however, why scarce prosecutorial resources were being brought to bear in a case about soda consumption. It remains to be seen whether THG and the other fine products from BALCO are any more dangerous — or available to impressionable youngsters for consumption — than a Coke, but I can’t help but think that even if they are, making a six-year, $55 million federal case out if it seems like a waste of time and money.

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  1. Conor said...

    Frankly, I think they’re just pissed. I don’t think this started out as “let’s trick players into committing perjury”. I believe they just wanted to stop the sources of these products. So Giambi comes in and spills his guts, except, he doesn’t name any names. Well thanks, but no thanks. Then Bonds comes in and flat out lies to them even though they gave him immunity. He wasn’t the target, but he lied to them anyway.

    I think this case is more about setting a precedent: you’re not going to get away with lying to a grand jury. It’s not a perfect case but the prosecution feels it needs to make a public display out of Bonds’ testimony (not necessarily what he was testifying about) – and really make a contrast between him having to go to court and blow time and money on lawyers, while Giambi is out getting ready for spring training.

  2. pete said...

    But Craig, aren’t they alleging that he lied about knowingly taking steroids? If The Clear was not classified as a steroid at the time he took it, doesn’t that dramatically impact their case?

    The hazier the status of The Clear, particularly at the time Bonds took it, the better it is for him, right? After all, if you can’t get the Justice Department to agree that it’s a steroid until 2005, how is some high school educated baseball player supposed to know what it is?

  3. Conor said...

    Pete – If you look at the indictment, they specifically ask Bonds about testosterone and human growth hormone and point out Bonds’ responses on those questions as being lies. I would think, if they specifically asked about those two substances, that they had pretty good evidence to back up that he used those exact substances.

  4. Craig Calcaterra said...

    Pete:  I think it impacts it, but it’s not a case killer because not all of the questions he allegedly lied about related to The Clear.  There were testosterone questions, and Cream questions, and questions about being injected with unspecified substances and questions about when that happened, etc.

    And yes, there were questions that were basically “did you take steroids,” and unless the government can establish that they were talking specifically about something that WASN’T the clear the counts in the indictment related to those questions could definitely be imperiled.  However, you could take The Clear out of this case altogether and Bonds could still be convicted of perjury.

    Upshot: this is certainly not bad news for Bonds, is very likely good news, but the scope of how good the news is a tad more limited than it first appears.

  5. Jason @ IIATMS said...

    Whether or not “the clear” was classified as a steroid or not, couldn’t the spirit of the definition and the effects it caused be considered?  Or is that a leap wayyyy to far?

  6. CJ said...

    I’m of the belief that Coke, Pepsi and other fast food products do far more damage to youth and the American population as a whole (with the associated couch potatoness) than steroids could if everyone took them (with the associated exercise programs).

    The crime here is in the $55 million spent. There are multiple people who should be thrown out of work in the federal government as stewards of our money for this.

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