The Price of Prosecuting Bonds

Neyer linked my bit about the feds raiding Greg Anderson’s mother-in-law’s house over in his Friday Filberts today, and he asks a good question:

But on the other hand — and I should probably defer to Craig on these things, because he’s got a law degree and I don’t — perhaps a high-profile prosecution of a public figure for lying to a grand jury is in the public’s interest. Even if it can’t be quantified in any meaningful way.

There are three primary reasons to prosecute someone for a crime: (1) to punish someone for violating a law; (2) to incapacitate that person via incarceration or execution from committing further crimes; or (3) to deter others from violating the same law. Actually, there shouldn’t be an “or” in there, because these aren’t mutually-exclusive categories. Indeed, most criminal prosecutions aim to do all three of these things to greater or lesser degrees, though certainly not always.

Punishment is certainly applicable in the case of Barry Bonds. We want to punish those who lie to grand juries because their actions have interfered with the orderly administration of justice. That said, this is not a capital crime we’re talking about here. Perjury is not an epidemic in this country and it doesn’t pose a serious risk to public safety or anything. Bonds may do some time if he’s convicted, but he won’t be spending his dotage in federal prison for it, nor should we expect him to.

Incapacitation isn’t really relevant here. Sure, Bonds won’t be out on the streets lying to grand juries if he goes to prison, but unless Bonds has a lot more going on in his life than we all know, the risk that he would have anyway is small.

Rob has hit on reason number three: deterrence. We can’t have an effective criminal justice system if people lie to grand juries, so it makes perfect sense to prosecute some people for perjury — even if we don’t go after everyone — so that others who may have to testify know that it is serious business. This was the primary purpose behind the Martha Stewart prosecution, and, depending on how much animus you feel Jeff Novitsky has for Barry Bonds, it is the primary purpose for this case too. And no it is not illegitimate on its face to single out high profile people for the simple reason that they provide the basis for stronger deterrents given that their prosecutions will be widely reported. But again, this snakes back into punishment, and we must accept that there is some limit to the lengths we’d go to deter this particular crime. Yes, executing someone for perjury would certainly send a message — indeed, it would probably eliminate the problem in its entirety! — but that’s not how Anglo-American jurisprudence rolls.

So if we add that together, we have a mild to moderate punishment incentive, a zero incapacitation incentive, and I’d say a moderate deterrence incentive at work. It follows then, that the prosecutorial effort expended to achieve those goals should be commensurate with the value achieving those goals brings to society.

I submit that the effort expended to get Bonds has far exceeded the public good even a successful prosecution will bring. Tens of millions of dollars have been spent on this case. Potential witnesses — not co-defendants, mind you, but mere witnesses — have done time in jail and are having the IRS’s nose rammed up their posterior. Overkill left the station months ago. We’re now into megakill.

So no, I’m not theoretically opposed to prosecuting Barry Bonds for lying to a grand jury. I am, however, opposed to the force which has been brought to bear to accomplish it.

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  1. Jim said...

    So you kinda try and quit?  I am a CPA so I know what the force of the IRS is and when I read about his mother being subject to an investigation, my heart went out to his mother who is presumably an innocent in all of this. 

    However, I am on the government’s side on this. Maybe I am old fashioned but you are not supposed to lie to the grand jury.  I would love to know what the agreement between Anderson and Bonds is?  Millions?  Anderson should fess up and be done with it. He should realize that the government in this high profile case has too much to lose and should comply.

    Changing the subject abruptly, have you ever written about the guys who represent baseball players.  I understand b Michael Rains, who was bonds attorney’s during the debacle that was the grand jury testimory is more often representing local law enforcement agencies, which is respectable work but might not be the right person to give advice on these matters.

  2. Craig Calcaterra said...

    Jim—I don’t think you kind of try and quit. I think that you figure out a reasonable level of expense and force you’ll go to in order to make an effective deterrents case.  If you can’t get the job done with that reasonable level of expense and force, you start to defeat the deterrent purpose in the first place.

    How? Let’s say I have to testify before a grand jury tomorrow and I’m thinking about lying. If I have just seen Barry Bonds get convicted for lying in a swift and businesslike prosecution, I may think twice.  If, on the other hand, I see that he was convicted, but only after five years, 60 million bucks, and the full weight of the federal law enforcement infrastructure brought down upon him and his cohorts, well, maybe I think that such prosecutions are exceptional, rare, and not likely to happen to a poor schmuck like me.

    And if the deterrent effect is gone, what are the feds really doing here?

    As for your other question, I have spoken with a guy who represents some other figures who have been caught up to greater or lesser degrees in the steroid investigations, though I haven’t written about him. Why? For the simple reason that he has done a really good job of representing his clients, so they haven’t become pariahs or defendants or anything.

    I don’t know about Bonds’ representation. They may have been good back at the time, but Bonds may simply not listen to his attorneys (it certainly fits his m.o.).  If he had been my client at the time I (and I think any other good lawyer) would have told him to sing like a canary—a truthful one—get it past him, and go on mashing baseballs.

    Whatever you can say about the Bonds prosecution, I don’t think you can say that that’s the tack Barry took.

  3. Jim said...

    You make very good points about the exceptional nature of the prosecution.

    Regarding the representation.  I may have missed the point a bit.  I think you really have the insight to help me understand how some of these guys get in these situations.  You make the very good point that Bonds might not be the best client, but Rains seemed to be less than professional with his public criticism and seemed to bring even more negative attention on the issue.  Clemens (again probably not the best client) and McGwire all seemed to make their situations worse and I wonder how this happends.

  4. Craig Calcaterra said...

    I really don’t know anything about Bonds’ lawyers, past or current, but many lawyers familiar with him (a couple of whom I’ve heard from, like, fourth hand) say that he’s outrageously difficult and won’t take direction.  Maybe that’s true, maybe that’s false, but it wouldn’t surprise me.  Same with Clemens and others.

    A lawyer simply can’t do his job if his client won’t listen to his advice. This doesn’t mean that you do everything that the lawyer tells you to, but it does mean that you have to have an open mind and realize that in the context of a lawsuit or a criminal prosecution, your lawyer knows more about how the process works than you do.

    In most cases this isn’t that hard.  If the client is tough to deal with, the lawyer walks away or at least threatens to.  Sometimes the client heels, sometimes he doesn’t, and life goes on.  The key is that it is the lawyer’s job to get the client to listen to reason and make the ultimate determination as to whether or not he can go forward with the representation.

    When the client is rich and famous—like, say, a ballplayer—it is REALLY hard for a lot of lawyers to whack their client into line like they have to.  They get starstruck or greedy, and many of them believe that they can’t tell the client no for risk of being fired.  “When am I going to get a chance to represent someone like Barry Bonds again?” they may say.  They will back off the typical client training.  Their threats of walking off the representation will be ineffective or will never happen.  The client will steer the ship more than he probably should.

    Not saying this is what happened with any of these ballplayers, though I will say that to this outsider the Clemens-Hardin dynamic seems to fit that profile.

  5. lar said...

    Not sure if I have much to add to this, Craig, but I just wanted to say that I appreciate seeing this point of view.

    I generally consider myself to have a pretty balanced point of view, usually seeing all sides to a discussion, and it always frustrates me when people/writers/media either ignore or just can’t see certain perspectives. This post does a great job of describing a lawyer’s or prosecutor’s reasons for doing something like this. And, I have to say, there is definitely some merit in those reasons.

    But, like you said in your follow-up comment, the merit only goes until a certain point, and then the public, and the potential wrong-doers, just brushes it away as an exceptional case.

    Anyway, thanks for the perspective. If only everyone could see more sides to these stories… of course, that would make some things a lot more dull, eh?

  6. Sabertooth said...

    Soxrocker, Clinton’s situation was anything but a right wing set up.

    In 1993 a Democrat House and Senate passed the extension of the Independent Counsel Act. In 1994 that same House and Senate passed the Violence Against Women Act, which gave sexual harassment plaintiffs the standing in court to investigate the prior workplace history of defendants. Democrats wanted these bills.  Clinton and his wife both wanted these bills.  Clinton signed both into law. Without these bills, Clinton would have had to perjure himself in the Paula Jones lawsuit, would never have been investigated by an independent counsel, and would not have been impeached.

  7. dlf said...

    Hey, politics!  Just what I was hoping I could find in a ShysterBall thread; more discussion of Bill Clinton …

    One of the interesting dynamics of representing a player is how much influence can be exerted outside the normal attorney-client relationship.  Some years ago, I represented a then MLB player in a divorce case which ended up being appealed to the state Supreme Court.  While I had a number of discussions with the player regarding trial and appeal strategy, most of those discussions took place with the player’s agent present and some took place only with that agent rather than the player himself.  (Yes, Craig, we had a very thorough CYA regarding attorney-client confidentiality.)  I had the feeling that final decisions were not just influenced by the agent, but heavily so.  That being said, we made absolutely sure—and documented it—that all strategic and tactical choices were signed off by the player.

    The player I was representing was an All Star who lead the league in a couple categories a couple of times, but was far from a superstar.  His universe of influence had just a couple folks.  When you are dealing with a player of the magnitude of Bonds, there have been tales of a much greater number of hangers on and influence shapers.  The attorney has to understand that his influence is going to be filtered by those outside the normal attorney-client relationship in a dynamic completely unlike any other.

  8. Real American said...

    if the government wanted to make an example out of someone for lying under oath, it should have prosecuted Bill Clinton. There’d be no better example to deter others. Or maybe everybody lies about PEDs.

  9. Soxrocker23 said...

    Idiotic! Last I knew you can’t prosecute consensual sexual acts, no matter how distasteful. Clinton should never have had to say anything under oath about his fling(s). That was all a total right wing setup….To compare that to illegal drug use, ripping off the public and perjury by Bonds and/or Clemens is foolish.

  10. Tony Antonielli said...

    Craig, loved your analysis of just how much effort, time, and money such an investigation might warrant.  Looked spot on to me, but I fear that here we have a case of zealous prosecutors who, having exceeded those levels, now have to continue even more zealously in order to present to their superiors and to the public some sort of
    success that will justify their zeal.  Makes me more and more appreciative of McGwire’s refusal to say anything…maybe he was on to something…

  11. Lying Lawyer said...

    Perjury is an epidemic. Look at any big cases like O.J. or any small cases like on Judge Judy. Courts are full of liars and they rarely get prosecuted for it. Bonds and Clemens can be great role models for kids. Don’t lie!

  12. VanderBirch said...

    Craig, great post as always.

    In your earlier post, Jack Marshall commented that”Until Bonds is proven guilty in a court and punished, he will stand as an example that you can cheat, lie, cover up, and make millions, break records, and suffer no adverse consequences whatsoever.” I find this an incredibly simplistic reading of the situation.

    Firstly, Bonds has probably chewed through an enormous amount of money in legal fees, and he has had all the worst elements of his character trawled through the media. His reputation has been ruined. But moreover, I think such a view ignores the fact that the legal system is necessarily imperfect.

    It would certainly be nice to punish all those who offend, but the desire for justice needs to be tempered by considerations of personal freedom and also of cost. The government doesn’t have bottomless coffers, and the the $50 million plus that has been spent on the Bonds prosecution could no doubt be better used elsewhere.

    This is very different than the Martha Stewart case. Insider trading greatly reduces the effectiveness of the stock market, and can cost investors incredible sums of money. If you can benefit from such trading, even on a small scale, and get off scot free the incentive to cheat the system is huge.

    In Bonds case, he used drugs and then lied about it. While lying before a grand jury should be prosecuted, such prosecution needs to be undertaken within reasonable limits. No need to tear peoples lives apart.If Bonds beats the rap, it doesn’t serve to undermine society at large. If a good drug testing regime/policy is in place, the incentive to used PED’s is greatly reduced,  which was really the key issue with the Balco case.

    To my mind, the whole case against Bonds jumped the shark a while back. It has become personal, and when something becomes personal, rationality tends to take a back seat. Bonds has become a pariah for a problem that was always (and continue to be) much larger and complex than just one man.

  13. Matt Sullivan said...

    While I agree that the prosecution of Bond’s has become a witch-hunt of ridiculous proportions, I think that there is another factor that influences the desire for prosecution in this case that goes beyond the issues of deterrence, prevention and punishment.

    Since it is not the federal government’s policy to prosecute end-users in drug cases, Bond’s lying under oath was a direct reflection of how important he felt it was to cover up his steroid use for public knowledge. As a result, the crime of perjury has become a short-hand for trying Bonds for tampering with the competitive balance in baseball. Had he not lied under oath, he would have had to admit he was playing with an advantage. This would have allowed baseball to severely discount his achievements, something he clearly sought to avoid even in the face of committing an actual crime. Bonds placed his image in athletic history above compliance with the law. That imparts a reckless attitude towards justice, something the government certainly doesn’t want to be ignored.

    While it may not be right spend millions of tax payer dollars on a minor crime such as this, it is certainly understandable that the government wants to make an example of a high profile individual who felt that his public image was more important then complying with the America judicial system. At this point, it is as much about celebrities acting above the law as it is about perjury . Bond’s could have apologized to his fans like Andy Pettite, Brian Roberts and many others in recent PED scandals, but he and Clemens (and Palmero) choose to lie under oath instead of tarnish there legacy. That shows a highly misplaced understanding of the relative importance of the two.

    Just my thoughts-


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