Justice Strikes Out: The railroading of Barry Bonds, and why we should all care
Justice Strikes Out: The railroading of Barry Bonds, and why we should all care - Forbes
No matter what one may think about Barry Bonds – his personal life, or his systematic cheating in baseball – his obstruction of justice conviction represents a dangerous precedent which, if not overturned in the Court of Appeals for the Ninth Circuit, will give expanded prosecutorial power to an already mighty Department of Justice. The federal government, unable to convict Bonds of a real crime, made one up, and convicted him of it. On August 26th, US District Judge Susan Illston dutifully continued the judicial tradition of playing handmaiden to the prosecutors; she affirmed the jury’s conviction and, in her written opinion doing so, further enshrined its perverse logic into law.
Many people assume Barry Bonds is guilty of something. A formerly rail-thin player known early in his career as much for his base-stealing prowess as for his bat, Bonds transformed himself into a veritable hulk, whose already considerable instincts for the game were matched with a bat-speed and power previously unseen. His success was too late in his career for it to be attributed realistically to exercise and Wheaties, and many, reasonably, came to the conclusion that he cheated.
And he probably did; he also lived in San Francisco, home to the Bay Area Laboratory Co-Operative, or BALCO, which, in 2003, was under investigation for illegally distributing steroids. As many of BALCO’s clients were professional athletes—including now-disgraced sprinter Marion Jones and admitted steroid user and former Oakland Athletic Jason Giambi—prominent athletes who had associations with members of BALCO were called to testify before a federal grand jury. Bonds was no exception; in December of 2003, he testified about his knowledge of BALCO and its steroid distribution. He had been granted an order of immunity, meaning that nothing he said could be held against him in court, unless he lied or obfuscated in his testimony, in which case he could be charged with perjury or obstruction of justice. During his testimony, Bonds argued that he unwittingly used what were known as “the cream” and “the clear,” substances that his trainer Greg Anderson gave to him and which Bonds believed (or so he said) to be “arthritis cream,” as well as a “flaxseed oil” like substance.
Before being pulled into criminal court, Bonds was tried in the court of public opinion. Two years after his grand jury testimony, Lance Williams and Mark Fainaru-Wada published “Game of Shadows”, a book chronicling steroid use in baseball, and containing excerpts from Bonds’s supposedly sealed and secret grand jury testimony. The book created a media firestorm, as Bonds, chasing Hank Aaron’s hallowed home run record, became a kind of bogeyman, despised everywhere save perhaps his home, San Francisco. The federal government reads the papers, too, and little over a year after the release of Game of Shadows, in November of 2007, Bonds was indicted in federal court on three counts of perjury and one count of obstruction of justice.
Here is where it gets really interesting. In April of this year, the jury could not return a verdict on the perjury counts—they were “hung,” or irrevocably in disagreement—but returned a verdict of guilty on the count of obstruction. Unable to find enough evidence to convict Bonds on the specific perjury charges—the question being whether Bonds knowingly told a lie during his testimony—the government hedged its bets by forcefully pursuing the count of obstruction—whether Bonds in some way obfuscated, or otherwise misled, the grand jury during his testimony. According to the law, as the jury understood it, obstruction occurs when
1. The defendant corruptly, that is, for the purpose of obstructing justice
2. obstructed, influenced, or impeded, or endeavored to obstruct, influence or impede the grand jury proceeding in which defendant testified,
3. by knowingly giving material testimony that was intentionally evasive, false, or misleading [emphasis added].
The statute may seem reasonable on its face; but, in the hands of prosecutors and an all-too-compliant federal judiciary, it becomes an incredibly dangerous trap. One need only consider the testimony which ended up sinking Bonds. The prosecutors asked him whether he had ever received injections from his trainer, Greg Anderson. Bonds’ first response to the question was, admittedly, odd:
Q: Did Greg ever give you anything that required a syringe to inject yourself with?
A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t—we don’t sit around and talk baseball, because he knows I don’t want—don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends, you come around talking baseball, you go on. I don’t talk about his business. You know what I mean?…
Q: Right
A: That’s what keeps our friendship. You know, I am sorry, but that—you know that—I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see. So, I don’t know—I don’t know—I’ve been married to a woman five years, known her 17 years, and I don’t even know what’s in her purse. I have never looked in it in my lifetime. You know, I just—I don’t do that, I just don’t do it, and you know, learned from my father and throughout his career, you don’t get in no one’s business, you can’t—there’s nothing they can say, you can’t say nothing about them. Just leave it alone. You want to keep your friendship, keep your friendship.
Bonds had thus given a fairly strange, rambling response to what seems to be a very straightforward question. The prosecutors, though, asked some clarifying follow-up questions:
Q: Did either Mr. Anderson or Mr. Conte ever give you a liquid that they told you to inject into yourself…?
A: No.
……
Q. So no one else other than perhaps the team doctor and your personal physician has ever injected anything in to you or taken anything out?
A: Well, there’s other doctors from surgeries. I can answer that question, if you’re getting technical like that. Sure, there are other people that have stuck needles in me and have drawn out—I’ve had a bunch of surgeries, yes.
Q: So—
A: So sorry
Q:–the team physician, when you’ve had surgery, and your own personal physician, but no other individuals like Mr. Anderson or any associate of his?
A: No, No.
In the end, as the government, and even Judge Illston, will go on to admit, Bonds ended up answering the question. He answered directly that no individuals like Greg Anderson or other BALCO employees had ever stuck needles into him. What is more, he was tried, for perjury, on that direct answer: the Jury returned a hung verdict – that is to say, the jury could not unanimously agree.
But, while Bonds’s answer was specific enough to inspire a perjury charge (but the evidence insufficient to result in a unanimous jury verdict of guilt), it was apparently vague enough to inspire an ancillary charge of obstruction. You see, according to the judge upholding the obstruction conviction, Bonds
endeavored to obstruct the grand jury by not answering [the question] when it was first asked…Here, defendant repeatedly provided nonresponsive answers to questions about whether Anderson had ever provided him with injectables, resulting in the prosecuting attorneys [sic] asking clarifying question after clarifying question, and even once resulting in one prosecutor interrupting another who was about to move on to a new topic in order to clarify defendant’s mixed responses. An evasive answer about an issue material to the grand jury is not necessarily rendered immaterial by the later provision of a direct answer, even if that direct answer is true [emphasis added]
The dangerousness of the Judge’s statement should be readily apparent. Bonds eventually, during the same interviewing session, answered the question to the prosecutors’ satisfaction. He so specifically answered the question that they based a perjury charge on his answer! And yet, because it took a few moments and steps to get to a flat-out answer, Bonds has been found guilty of obstruction of justice, a crime that can (although unlikely in this case) carry up to a decade plus of prison time.
Much more important than whether Barry Bonds spends any time in jail is the precedent which this case can set. According to the judge, the government can accuse an individual of being “evasive” simply if that individual does not answer the question in what the prosecution deems a sufficiently direct manner; indeed, the need for a clarifying question of any sort would seem to be evidence of criminal obstruction. We can consider any number of scenarios where an ordinary citizen could face such a charge. Consider, again, the initial exchange:
Q: Did Greg ever give you anything that required a syringe to inject yourself with?
A: I’ve only had one doctor touch me.
Bonds then went on to ramble about his personal life, but the answer would seem, on its face, reasonable and clear. It was then Bonds’ ramblings which constituted criminal behavior.
Now consider any number of hypothetical examples where an individual might be asked a question by a grand jury and go on too long.
Hypothetical Question: Mr. Kerry, should the federal government ever provide funding for abortion?
Kerry’s Answer (as actually spoken in his second Presidential Debate): First of all, I cannot tell you how deeply I respect the belief about life and when it begins. I’m a Catholic, raised a Catholic, I was an altar boy. Religion has been a huge part of my life. It helped lead me through a war, leads me today. But I can’t take what is an article of faith for me and legislate it for someone who doesn’t share that article of faith, whether they be agnostic, atheist, Jew, Protestant, whatever. I can’t do that. But I can counsel people. I can talk reasonably about life and about responsibility. I can talk to people, as my wife Teresa does, about making other choices, and about abstinence, and about all these other things that we ought to do as a responsible society. But as a president, I have to represent all the people in the nation. And I have to make that judgment.
If John Kerry were on a witness stand before a grand jury, his answer, as honest an attempt as it was at answering what he viewed as the substance of a question, could, even if he clarified it later very specifically, land him with a charge of obstruction of justice. Barry Bonds has not been charged with a crime. He’s been charged with not being articulate. And while perhaps his performance before the grand jury was an indictment of his schooling at Arizona State University, the government should not have the power to convict him of obstructing the answer to a question he subsequently answered!
The Bonds case, unless overturned by an appellate court, thus stands as just the latest proof that the federal criminal justice system has endowed federal prosecutors with the unfettered power not only to indict, but also to convict, the proverbial ham sandwich. This dangerous power emanates from the use of vague and broad statutes that can mean virtually anything that a prosecutor says it means, providing he can find a compliant judge to nod in agreement. Such a precedent would give the government unlimited prosecutorial power, and would represent a danger to us all.
Justice Strikes Out: The railroading of Barry Bonds, and why we should all care - Forbes
No matter what one may think about Barry Bonds – his personal life, or his systematic cheating in baseball – his obstruction of justice conviction represents a dangerous precedent which, if not overturned in the Court of Appeals for the Ninth Circuit, will give expanded prosecutorial power to an already mighty Department of Justice. The federal government, unable to convict Bonds of a real crime, made one up, and convicted him of it. On August 26th, US District Judge Susan Illston dutifully continued the judicial tradition of playing handmaiden to the prosecutors; she affirmed the jury’s conviction and, in her written opinion doing so, further enshrined its perverse logic into law.
Many people assume Barry Bonds is guilty of something. A formerly rail-thin player known early in his career as much for his base-stealing prowess as for his bat, Bonds transformed himself into a veritable hulk, whose already considerable instincts for the game were matched with a bat-speed and power previously unseen. His success was too late in his career for it to be attributed realistically to exercise and Wheaties, and many, reasonably, came to the conclusion that he cheated.
And he probably did; he also lived in San Francisco, home to the Bay Area Laboratory Co-Operative, or BALCO, which, in 2003, was under investigation for illegally distributing steroids. As many of BALCO’s clients were professional athletes—including now-disgraced sprinter Marion Jones and admitted steroid user and former Oakland Athletic Jason Giambi—prominent athletes who had associations with members of BALCO were called to testify before a federal grand jury. Bonds was no exception; in December of 2003, he testified about his knowledge of BALCO and its steroid distribution. He had been granted an order of immunity, meaning that nothing he said could be held against him in court, unless he lied or obfuscated in his testimony, in which case he could be charged with perjury or obstruction of justice. During his testimony, Bonds argued that he unwittingly used what were known as “the cream” and “the clear,” substances that his trainer Greg Anderson gave to him and which Bonds believed (or so he said) to be “arthritis cream,” as well as a “flaxseed oil” like substance.
Before being pulled into criminal court, Bonds was tried in the court of public opinion. Two years after his grand jury testimony, Lance Williams and Mark Fainaru-Wada published “Game of Shadows”, a book chronicling steroid use in baseball, and containing excerpts from Bonds’s supposedly sealed and secret grand jury testimony. The book created a media firestorm, as Bonds, chasing Hank Aaron’s hallowed home run record, became a kind of bogeyman, despised everywhere save perhaps his home, San Francisco. The federal government reads the papers, too, and little over a year after the release of Game of Shadows, in November of 2007, Bonds was indicted in federal court on three counts of perjury and one count of obstruction of justice.
Here is where it gets really interesting. In April of this year, the jury could not return a verdict on the perjury counts—they were “hung,” or irrevocably in disagreement—but returned a verdict of guilty on the count of obstruction. Unable to find enough evidence to convict Bonds on the specific perjury charges—the question being whether Bonds knowingly told a lie during his testimony—the government hedged its bets by forcefully pursuing the count of obstruction—whether Bonds in some way obfuscated, or otherwise misled, the grand jury during his testimony. According to the law, as the jury understood it, obstruction occurs when
1. The defendant corruptly, that is, for the purpose of obstructing justice
2. obstructed, influenced, or impeded, or endeavored to obstruct, influence or impede the grand jury proceeding in which defendant testified,
3. by knowingly giving material testimony that was intentionally evasive, false, or misleading [emphasis added].
The statute may seem reasonable on its face; but, in the hands of prosecutors and an all-too-compliant federal judiciary, it becomes an incredibly dangerous trap. One need only consider the testimony which ended up sinking Bonds. The prosecutors asked him whether he had ever received injections from his trainer, Greg Anderson. Bonds’ first response to the question was, admittedly, odd:
Q: Did Greg ever give you anything that required a syringe to inject yourself with?
A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t—we don’t sit around and talk baseball, because he knows I don’t want—don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends, you come around talking baseball, you go on. I don’t talk about his business. You know what I mean?…
Q: Right
A: That’s what keeps our friendship. You know, I am sorry, but that—you know that—I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see. So, I don’t know—I don’t know—I’ve been married to a woman five years, known her 17 years, and I don’t even know what’s in her purse. I have never looked in it in my lifetime. You know, I just—I don’t do that, I just don’t do it, and you know, learned from my father and throughout his career, you don’t get in no one’s business, you can’t—there’s nothing they can say, you can’t say nothing about them. Just leave it alone. You want to keep your friendship, keep your friendship.
Bonds had thus given a fairly strange, rambling response to what seems to be a very straightforward question. The prosecutors, though, asked some clarifying follow-up questions:
Q: Did either Mr. Anderson or Mr. Conte ever give you a liquid that they told you to inject into yourself…?
A: No.
……
Q. So no one else other than perhaps the team doctor and your personal physician has ever injected anything in to you or taken anything out?
A: Well, there’s other doctors from surgeries. I can answer that question, if you’re getting technical like that. Sure, there are other people that have stuck needles in me and have drawn out—I’ve had a bunch of surgeries, yes.
Q: So—
A: So sorry
Q:–the team physician, when you’ve had surgery, and your own personal physician, but no other individuals like Mr. Anderson or any associate of his?
A: No, No.
In the end, as the government, and even Judge Illston, will go on to admit, Bonds ended up answering the question. He answered directly that no individuals like Greg Anderson or other BALCO employees had ever stuck needles into him. What is more, he was tried, for perjury, on that direct answer: the Jury returned a hung verdict – that is to say, the jury could not unanimously agree.
But, while Bonds’s answer was specific enough to inspire a perjury charge (but the evidence insufficient to result in a unanimous jury verdict of guilt), it was apparently vague enough to inspire an ancillary charge of obstruction. You see, according to the judge upholding the obstruction conviction, Bonds
endeavored to obstruct the grand jury by not answering [the question] when it was first asked…Here, defendant repeatedly provided nonresponsive answers to questions about whether Anderson had ever provided him with injectables, resulting in the prosecuting attorneys [sic] asking clarifying question after clarifying question, and even once resulting in one prosecutor interrupting another who was about to move on to a new topic in order to clarify defendant’s mixed responses. An evasive answer about an issue material to the grand jury is not necessarily rendered immaterial by the later provision of a direct answer, even if that direct answer is true [emphasis added]
The dangerousness of the Judge’s statement should be readily apparent. Bonds eventually, during the same interviewing session, answered the question to the prosecutors’ satisfaction. He so specifically answered the question that they based a perjury charge on his answer! And yet, because it took a few moments and steps to get to a flat-out answer, Bonds has been found guilty of obstruction of justice, a crime that can (although unlikely in this case) carry up to a decade plus of prison time.
Much more important than whether Barry Bonds spends any time in jail is the precedent which this case can set. According to the judge, the government can accuse an individual of being “evasive” simply if that individual does not answer the question in what the prosecution deems a sufficiently direct manner; indeed, the need for a clarifying question of any sort would seem to be evidence of criminal obstruction. We can consider any number of scenarios where an ordinary citizen could face such a charge. Consider, again, the initial exchange:
Q: Did Greg ever give you anything that required a syringe to inject yourself with?
A: I’ve only had one doctor touch me.
Bonds then went on to ramble about his personal life, but the answer would seem, on its face, reasonable and clear. It was then Bonds’ ramblings which constituted criminal behavior.
Now consider any number of hypothetical examples where an individual might be asked a question by a grand jury and go on too long.
Hypothetical Question: Mr. Kerry, should the federal government ever provide funding for abortion?
Kerry’s Answer (as actually spoken in his second Presidential Debate): First of all, I cannot tell you how deeply I respect the belief about life and when it begins. I’m a Catholic, raised a Catholic, I was an altar boy. Religion has been a huge part of my life. It helped lead me through a war, leads me today. But I can’t take what is an article of faith for me and legislate it for someone who doesn’t share that article of faith, whether they be agnostic, atheist, Jew, Protestant, whatever. I can’t do that. But I can counsel people. I can talk reasonably about life and about responsibility. I can talk to people, as my wife Teresa does, about making other choices, and about abstinence, and about all these other things that we ought to do as a responsible society. But as a president, I have to represent all the people in the nation. And I have to make that judgment.
If John Kerry were on a witness stand before a grand jury, his answer, as honest an attempt as it was at answering what he viewed as the substance of a question, could, even if he clarified it later very specifically, land him with a charge of obstruction of justice. Barry Bonds has not been charged with a crime. He’s been charged with not being articulate. And while perhaps his performance before the grand jury was an indictment of his schooling at Arizona State University, the government should not have the power to convict him of obstructing the answer to a question he subsequently answered!
The Bonds case, unless overturned by an appellate court, thus stands as just the latest proof that the federal criminal justice system has endowed federal prosecutors with the unfettered power not only to indict, but also to convict, the proverbial ham sandwich. This dangerous power emanates from the use of vague and broad statutes that can mean virtually anything that a prosecutor says it means, providing he can find a compliant judge to nod in agreement. Such a precedent would give the government unlimited prosecutorial power, and would represent a danger to us all.
