After more than five years and the expenditure of tens of millions of taxpayer dollars, it’s show time for the government. The case known as the United States of America vs. Barry Lamar Bonds is coming to San Francisco on March 2 for what is estimated to be a four week run.
The feds will attempt to prove that Bonds committed perjury when he testified before a federal grand jury in December 2003 that he did not knowingly use steroids. In layman’s terms, perjury is lying under oath about a material fact when you know your statement is false.
Under questioning by prosecutors, Bonds admitted using two substances – the Cream and the Clear – that he later determined to be steroids. But he said he didn’t know they were steroids at the time he used them. Bonds insisted he thought his former trainer, Greg Anderson, gave him flaxseed oil and an arthritis balm to alleviate the aches and pains that come with the daily grind of playing professional baseball.
Most Americans, save, hopefully, the members of the jury who will hear evidence in the case and determine Bonds’ guilt or innocence, have made up their minds about Bonds. And polls suggest that in the court of public opinion, Bonds is guilty as charged. But fortunately for him, not to mention the rest of us, our system of justice requires that the government prove its case beyond a reasonable doubt in a court of law. And by all accounts, the government will have its work cut out for it. The case is more porous than the Yankees 2008 defense.
Judge Susan Illston’s pre-trial rulings have generally favored Bonds. The most recent government setback came last week when Judge Illston refused to allow evidence of three positive steroid tests and documents alleged to be doping calendars. Prosecutors will be allowed to enter evidence of one positive test, taken on a sample from the infamous 2003 survey testing of MLB players, the same test that tripped up A-Rod.
Those test results were supposed to be confidential and the samples destroyed. But the union, for some inexplicable reason save incompetence, failed to dispose of the evidence before the government seized it in a raid on several testing facilities in conjunction with the BALCO investigation.
The key to the government’s case against Bonds is and always has been Anderson. The trainer was among the BALCO defendants who plead guilty to conspiracy to distribute steroids and spent three months in prison. Upon his release, he was paraded before a grand jury investigating Bonds and refused to testify. He was sent back to prison on two separate occasions and served an additional year behind bars.
The feds tried to procure Anderson’s testimony by putting pressure on his wife and mother-in-law, threatening each with tax charges and staging a raid on the mother-in-law’s house. Prosecutors are determined to call Anderson as a witness against Bonds. But Anderson’s attorneys say he will never rat on Bonds and Judge Illston is on record as being loath to find him in contempt a third time.
Prosecutors intend to call several witnesses who claim Bonds discussed his use of steroids with them and another witness who claims she watched Anderson inject Bonds, with what, no one knows. Most of the witnesses are a defense attorney’s dream, including a jilted mistress and individuals who themselves engaged in criminal activity.
Judge Illston will allow the government to enter expert testimony concerning the effects steroid use can have on the male body, including back acne and shrunken testicles. The government’s only witness on the condition of Bonds’ private parts is his former mistress, Kimberly Bell, who seems all too eager to confirm the expert’s testimony as it relates to Bonds. This won’t be a trial so much as a pilot for a reality show on Fox.
The government is unlikely to prevail against Bonds, in spite of their vast resources and huge expenditures in time and money. Even if Bonds is convicted, Judge Illston is likely to give him probation instead of jail time. Regardless of the trial’s outcome, we all lose.
In comparison, the government throwing hundreds of billions of dollars at banks and auto companies doesn’t seem like such a bad deal.
UPDATE
The federal government has publicly admitted what many of us have known for years: Without the testimony of Greg Anderson, Barry Bonds’ former trainer and childhood friend, the game is over. The feds don’t stand a chance of convicting baseball’s home run king of charges that he committed perjury when he testified before a grand jury that he didn’t knowingly take steroids.
The government’s admission came on Friday afternoon in Federal District Court in San Francisco. Prosecutors told presiding Judge Susan Illston they would appeal her earlier ruling that without Anderson’s testimony, evidence of three positive drug tests, along with doping calendars and ledgers that allegedly relate to Bonds’ use of steroids, was inadmissible in her courtroom.
The appeal means the trial against Bonds - set to begin on March 2 – could be delayed for months, if not longer. The government has already spent more than five years and tens of millions of dollars preparing their case against Bonds. But when Anderson was asked in open court on Friday morning whether he would testify against Bonds, he replied in the negative. Shortly thereafter, the government effectively conceded defeat.
But rather than fold their house of cards and move on to prosecuting real crimes against the citizens of this country – Was the Bernie Madoff Ponzi scheme just a hoax? Are there no current or former bank officers at Citibank or Bank of America who committed crimes against the American taxpayer? – the government elected to throw (our) good money after bad.
The sole issue on appeal is Judge Illston’s ruling concerning the admissibility of the drug evidence. Regardless of the decision of the appellate judges, the government has nothing to lose. A win in the Court of Appeals, and the additional evidence could persuade a jury to convict Bonds. If the government loses the appeal, which is likely, the trial could still go forward but the result will almost certainly be a not guilty verdict for Bonds. In either case, the appeal represents an abuse of prosecutorial discretion and power reminiscent of the McCarthy era.
The case against Bonds long ago passed the demarcation line between prosecution and persecution, with each successive move by the government confirming the latter. The government has conducted a witch hunt against Bonds since December 2003, when he testified before the grand jury investigating the BALCO case involving steroid distribution to athletes in a number of sports.
A reading of the grand jury transcript suggests that Bonds – and only Bonds – was targeted for prosecution even though he wasn’t the only baseball player who testified to illegally using performance enhancing drugs. Thus began a five-year crusade that included sending Anderson to prison on two separate occasions for failing to cooperate with government investigators, and intimidating his wife and mother-in-law in an effort to loosen the trainer’s tongue.
The government’s actions in the Bonds case have been unconscionable. Despite the fact that Bonds is an admitted steroid user, and his testimony before the grand jury was less than forthright, the campaign against him exceeds all manner of perspective. The crime(s) Bonds committed, and the likely punishment in the event he is ever convicted, do not merit the time and expense the government has expended in his pursuit.
There’s a new administration in Washington. But the action taken by the Department of Justice in the Bonds case – they almost certainly would have had to approve an appeal of this nature - confirms that the new administration is hardly distinguishable from the old one. While the bombastic Barry Frank, Representative from Massachusetts, rails against the sports related marketing expenses of bailout recipients Citibank and Bank of America, he and others of his ilk turn a blind eye to the wasteful spending associated with the Bonds persecution.
If prosecutors had to make the money necessary to pursue a conviction, as Bonds did in order to fund his defense, it’s unlikely this case would have ever seen the light of day. Instead, the government gets to wield its abusive powers using our hard earned dollars.
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Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at jkobritz@mindspring.com.
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