Bonds Indicted…Finally

Well, it’s only been four years since this thing started. From the looks of things, there is no new information here to explain why there wasn’t an indictment many years ago. My sense is that this is a “well, we’ve got to do something” move. Unless Greg Anderson talks—and why would he crack now?—I think the perjury case against Bonds is weak. His release is somewhat suspicious, but Anderson’s lawyer says his client hasn’t changed his mind about not testifying.

Here is what the lawyers think about the case.

Todd Zywicki (from July, 2006):

But without Anderson’s testimony, the direct evidence seems thin (assuming that the book reports all the evidence)….

In short, Bonds let Anderson handle everything, from protocol, to purchase, to shots, and to workouts. Clearly Bonds asked no questions about what Anderson was doing and simply trusted him to handle everything. Equally clearly Bonds knew what Anderson was giving him, especially in light of the physical side effects of the drugs. So common sense seems to suggest that he perjured himself, but a close sifting of the evidence that we know about the evidence seems much less clear. But he seems to have created an almost perfect intermediary in Anderson who could protect him. Every chain of evidence in the case seems to end at Anderson. Although common sense then connects Anderson to Bonds, I can’t recall any specific, provable fact that provides that final link….

Without Anderson’s testimony, I have serious doubts about whether the feds will be able to get Bonds on perjury (although tax evasion should be easier).

Michael McCann:

4. Assuming there is a trial, how would the perjury charge play out?

Perjury is to knowingly lie under oath and typically about a matter material to an investigation or case. To prove guilt, the prosecution must establish more than just Bonds lying under oath. It must show that he knowingly lied, meaning his lie must not have been a mistaken belief or a misunderstanding. For that reason, Bonds could argue that he misunderstood the question or the context in which it was asked, which led to an inadvertent lie. He could also argue that he understood the question, but genuinely thought he was telling the truth, such as stating that he believed he was taking a legal performance enhancer, but which in fact was flax seed oil or human growth hormone. All he would need to do is place reasonable doubt in the jury’s mind.

The prosecution, however, would likely use the testimony of witnesses to establish that Bonds knowingly lied. For instance, Bond’s ex-mistress, Kimberly Bell, told the grand jury that Bonds admitted to knowingly used steroids. But in his defense, Bonds could argue that, given his now difficult relationship with her, Bell cannot be trusted and that his admission to her has been exaggerated or mischaracterized, and thus better constitutes hearsay, a statement made outside of the courtroom that is usually deemed inadmissible because of its lack of reliability.

5. What about the obstruction of justice charge?

Obstruction of justice captures different types of misconduct during a legal proceeding. Basically, if a defendant knowingly tries to impair a proceeding in any material and unacceptable way, such as lying about a material matter under oath, the defendant can be found guilty of the charge. Bonds would likely offer similar defenses to those described above for perjury.

Craig Calcaterra

I am not a criminal lawyer by trade, but my criminal law experience suggests to me that this is a face-saving indictment designed to allow the investigators and the US Attorney say they did their job. They got the indictment (note: a U.S. Attorney can get an indictment on anyone for just about anything). If and when Bonds walks, they will blame a Bonds friendly San Francisco jury pool, and it will be done.

Make no mistake: I think Bonds took steroids, and I tend to think that, generally speaking, he has lied about it. This indictment, on these particular questions, however, look very, very weak.

I’m just happy to get the ball rolling on this. Has it really been this long? I’ll be happy when we finally put the criminal part of this case to bed.

How will this harm Bonds? It’s possible his baseball career could be over, but I’m not counting on it. My guess is that Bonds would prefer to play rather than sit at home and think about this. He’s too good for some team not to take a chance on. Sports fans are very forgiving, especially if you are good. Imagine a scenario where David Ortiz and Manny Ramirez both go down in spring training. Do you think Red Sox fans would complain if the team picked up Bonds? I think the only thing that gets in his way is pride. He might not get a contract that he thinks he deserves, and choose to sit out on principle. Thus, he could end up joining a team in mid-season when someone gets desperate.

12 Responses “Bonds Indicted…Finally”

  1. Hugo says:

    While you ask why Anderson (I assume that is Bonds trainer who was until recently in jail) would talk now I have to wonder at how much of a coincidence it is that he got out of jail the same day Bonds was indicted. Smells like they finally offered him a plea he was willing to accept.

  2. Cliff says:

    From a lawyer (who doesn’t practice criminal law, but had to learn a little to pass the bar), some of this stuff just isn’t so.

    1. Anderson was in jail for CONTEMPT OF COURT for refusing to testify. His release could be “We got the indictment anyway, so let him out (for now)?”.

    2. Kimberly Bell’s testimony is not hearsay. An admission of a party is specifically admissible.

    3. We don’t know how much of Fainaru-Wada’s sources that the Feds were able to scoop, but there are apparently many more that are out there that know pieces of this puzzle.

    4. One change in the last 60 days or so that could have triggered this was the clubhouse woker from Arizona Spring Training that came out and put all sorts of gory details out there about Bonds having surgery to remove mammary glands (because he lactated in his jersey).

    5. Yes, he will have a favorable jury pool and may walk, but prosecutors really pull out the stops on people who lie to them and spoil their investigations.

    6. The obstruction charge may be the strongest (depending on how it is worded). Suggesting to a potential witness to not make himself available, suggesting testimony, damaging physical evidence, asking others to do it.

    It’s up to the jury.

  3. Ron says:

    Why would a team give Bonds a contract when he could be convicted of perjury and sent to jail in the middle (or beginning depending on when the trial is) of the season? I’d be surprised if he gets any offers before this goes to trial. If he is acquitted, maybe he can then convince somebody to sign him.

  4. Jason says:

    Craig Calcaterra admits to not being a lawyer, so he doesn’t know this, but the Feds ONLY bring charges in cases they think they will win. They don’t do what he accuses them of – bringing charges to save face. The federal conviction rate is something like 95%. If they brought the charges, they think they can make them stick. The Feds don’t like to lose – ever. They won’t bring charges if they think they will most likely lose. If it’s not looking like a slam dunk for them, they don’t go to court.

  5. JC says:

    Thanks for the info, Cliff. Good stuff. I welcome any other lawyers with expertise in this area to chime in.

  6. Marc Schneider says:

    JC,

    I strongly disagree with you here. I think Bonds’ career is over. No one is going to sign a guy who is under indictment. Aside from the PR problems–I think fans would object to signing a guy facing prison time–he would the distraction of all time.

    As for releasing Anderson, once the indictment was obtained, the govermment had to release him. He was in jail to try to get him to testify and once his testimony was no longer necessary, they had to release him. I don’t think there’s anything coincidental about it. They probably should have released him sooner since it was obvious he wasn’t going to testify but they had to once they got the indictment. However, if he refuses to testify now, it seems to me they have a strong obstruction of justice case against him and I hope he gets some real prison time.

    As for it being a weak case, I doubt that we are privy to everything the govermment has. Given how difficult it is to convict on perjury, several other legal observers have come to the exact opposite conclusion–that the government must have an extremely strong case. It seems unlikely to me that a prosecutor would want to get an indictment without a reasonable chance of winning–he’s going to look a lot worse if he presents a weak case and Bonds is acquitted.

  7. JC says:

    I believe that he is a lawyer. His qualification is that he is not a criminal lawyer. Please…no jokes. :-)

    However, this doesn’t mean that you don’t have a point, Jason.

    I think this case is special. They’ve renewed the grand jury twice (I think). From a political standpoint—which is all this case is about—I think they would prefer to go for it and lose than admit they wasted four years of resources pursuing a bum case. The wildcard here is new information that we haven’t seen. That is still a very real possibility.

  8. I am a lawyer. Civil litigation for the most part, but I have defended two criminal cases in the past couple of years, one involving a defendant very similar to Bonds (very public, very unpopular generally, lots of media coverage).

    My thoughts echo JC’s. It is way worse for them to not indict than it is to indict and lose. That combined with what, in my opinion, looks like a weak factual basis for perjury, leads me to believe that Bonds will skate.

  9. Johnny says:

    Convicted or not the only thing that is clear to me is that whether or not he wants to or not Barry Bonds won’t play baseball this season if ever. I don’t have any practical knowledge since I am not even close to being in the law profession but these things usually are drug out over months. I can’t think that any GM would want to take on player under indictment who’s availability is questionable.

    JC, I know that you are of the opinion that Bonds REALLY hasn’t done anything wrong since:
    1. HGH Steroids and the like were not illegal for some time in baseball.
    2. You don’t believe that stuff actually improves a players ability to hit or catch a ball.
    3. The majority of the public really hates Bonds because he is an asshole rather than because he cheats.

    I really don’t care if he is convicted or not. But I would be happy if he never played major league baseball again.

  10. JC says:

    Anabolic steroids most definitely improve athletic performance. HGH and andro do not.

  11. Jared says:

    Anabolic steroids most definitely improve athletic performance. HGH and andro do not.

    I agree with you on anabolic steroids, of course, and think you’re *probably* right on HGH (aside: I don’t think that the evidence that it doesn’t enhance performance is as strong as you suggest – I think it would be safer to say that it doesn’t help performance nearly as much as steroids) but I’m surprised to hear you say that andro doesn’t improve performance. I assumed that since andro is a chemical precurser to testosterone that its effects would be along the same lines as steriods. What evidence is there that andro doesn’t improve performance?

  12. JC says:

    Jared,

    I’m not sure what reason we have to believe that there are ergogenic benefits to HGH other than the fact that the media and companies who sell HGH have been beating us over the head with incorrect information for years. And given all of the attention I have received for bringing this up, you would think that someone would have provided some counter evidence if I was wrong.

    As for andro, I cannot recall the citation for the seminal study on andro. The paper is on my desk at work, and I will post the abstract on Monday. The deal is, andro can convert to either testosterone or estrogen. And if you already have plenty of testosterone, its going to turn to estrogen. If anything, andro was hurting Mark McGwire, not helping him. In the meantime, here is a link to a literature survey.

    The Safety and Efficacy of Anabolic Steroid Precursors: What is the Scientific Evidence?

    Although fairly new to the athletic community, steroid precursors have been used as ergogenic or anabolic agents for quite some time. Suggested gains in strength and lean body mass are attributed to an increase in the endogenous production of testosterone and enhanced protein synthesis. Most of the scientific data, however, do not support manufacturers’ ergogenic claims, and the potential for serious side effects, such as decreased high-density lipoprotein cholesterol and increased estrogen concentrations, has been associated with precursor use. Thus, the safety and efficacy of these supplements must be questioned.