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Yes, Barry Bonds could very well be convicted

Feb 16, 2011, 8:45 AM EDT

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I probably need to clarify a point regarding my assessment of the prosecution’s case in the whole Barry Bonds.  I’ve said many times that I think it’s a weak case. Recently my comments to this effect have been picked up by various blogs and have been characterized as me saying that Bonds is going to skate and the prosecution is doomed. That’s not exactly what I believe.

  • I believe that, as far as perjury prosecutions go, there is way less evidence here than you usually see and that the lies normally turned into perjury prosecutions are typically far more stark and unequivocal than the ones Barry Bonds is accused of telling. I believe that, in most instances this is case that would never have been brought by responsible prosecutors.
  • Some time ago, when it went up on appeal and the court excluded all of the doping calendars and everyone realized that Anderson wouldn’t testify I believed that the prosecution would drop the case and that Bonds would, at that point skate.  That obviously didn’t happen and I’m still surprised that it didn’t.
  • I still believe that the case to is light on evidence, wasteful, misguided and sets a dangerous precedent that actually harms the grand jury process far more than Bonds’ alleged perjury did.

But I also acknowledge that, once you get a jury in the box anything can happen.  My criticisms of the prosecution’s approach aside, the fact is that Bonds is telling a story that’s hard to believe and it’s not at all a stretch to think that the prosecution could get a jury to rule against him.

That doesn’t justify the prosecution because I don’t believe that the government should be casually bringing “yeah, I bet we can convince some people of this” kind of cases. The standard for pulling the trigger on a prosecution should be way higher simply because (a) as the old saying goes, you can indict a ham sandwich; (b) despite their charge to be impartial, juries tend to believe that if someone was indicted that they probably did it; and (c) because of that conviction rates are really damn high for cases that last this long.

The prosecutor has way more power than most people think in the criminal justice system. Good ones decline to go after ticky-tack cases for a lot of good reasons and this is a ticky tack case.  You can say that “well, if he lied he should be convicted” but prosecutors are given a ton of discretion for a reason.  They typically and responsibly decline to prosecute cases when the costs — not merely financial costs but costs to the justice system — outweigh the benefits of the prosecution.  I believe this is one of those cases where that discretion should have been exercised and the prosecution not pursued.

But given that hasn’t happened here it certainly means that, yeah, the jury that is seated next month could convict Bonds. And I’m not making any predictions that they won’t.

  1. teachmehowtodickey - Feb 16, 2011 at 9:00 AM

    i grew up a dodgers fan, bleeding dodger blue, and hating bonds was a part of life…yet i cant help but get upset over what a waste of tax payer dollars this whole baseball steroids witch trial has become. how many tax dollars is it worth for the man to tell you i told ya so??? we’ve spent more man hours prosecuting a dude who when you truly break it down is just an entertainer then we did the greedy corporations who destroyed the gulf coast.

    • Chris Fiorentino - Feb 16, 2011 at 9:24 AM

      I couldn’t agree more with you here. This is a disgrace to the justice system. I despise Bonds as much as the next person, but the prosecutors have succeeded in making him such a sympathetic figure that I would not be surprised that the jury brings some of the same feelings into the box with them. There’s really no “WOW!” evidence here, so when it is so circumstantial, personal feelings have to be a major factor, whether we say it or not. In this case, if I were on the jury, I would not be able to vote to convict unless there’s something that has never been brought to light, which after all this time, I highly doubt.

      • Kevin S. - Feb 16, 2011 at 9:40 AM

        When you have Fiorentino and me agreeing that you’re full of shit, you know you’ve fucked up royally.

      • Mr. Jason "El Bravo" Heyward - Feb 16, 2011 at 11:41 AM

        True that. Although out of pure need to disagree with Fiorentino in some way, I’ll say this: Bonds is the best player ever according to his numbers alone.

  2. drunkenhooliganism - Feb 16, 2011 at 9:03 AM

    “pulling the tigger.”

    Is that what the kids are calling it these days?

    • Old Gator - Feb 16, 2011 at 9:18 AM

      Me and Shorty brought the rope. Henry here has a hoss can pull them bars right out of the wall. There’s a big ole oak right across the street. Why we spending all this money for? Let’s git this thing over with, boys….and then I’ll buy a round of whiskey for all of us!

  3. baseballstars - Feb 16, 2011 at 10:25 AM

    That doesn’t justify the prosecution because I don’t believe that the government should be casually bringing “yeah, I bet we can convince some people of this” kind of cases.
    ———————————————–

    I don’t like Barry Bonds at all, but I agree. If he knowingly lied, and it can be proven, then yeah, he deserves some punishment. But let’s also put things into context. Unlike you, I do believe PED-users should be punished (by the organizations they work for). However, it’s not like Bonds did something on the level of Rae Carruth, or even Albert Haynesworth. All the manpower and tax money used to eradicate steroids in baseball could have been used for something that actually would have made a difference in more important areas (like credit default swaps and accounting control frauds).

    • cur68 - Feb 16, 2011 at 4:07 PM

      And lets all remember to grateful that Calcaterra isn’t threatening to eat anything over this. Between hats and posters the guy’s plate is full.

  4. granted42 - Feb 16, 2011 at 1:06 PM

    I think Bonds will be convicted, after all, people have been doubting his defense for years.

  5. xmatt0926x - Feb 16, 2011 at 1:11 PM

    Forget the details. I get that he lied to them and all, but for baseball’s sake I just wish they’d quietly get rid of these cases with Bonds and Clemens. Baseball seems to be moving on and this stuff is just an ugly reminder that keeps coming up. Ship them to Russia, tell Putin that they are anti-Kremlin journalists and that should just about do it. Lets move on to the 2011 season.

  6. motherscratcher23 - Feb 16, 2011 at 2:18 PM

    “…as the old saying goes, you can indict a ham sandwich”

    And yet, 36 years later, there is still no justice for Mama Cass.

  7. cur68 - Feb 16, 2011 at 4:05 PM

    Pretty near 100% agreement that we should get the f**k off Bonds and stop wasting tax $$ going after this guy. So why are they going forward with this trial? Someone has to be getting paid big time or is hoping to set their rep for life by getting him. ID that person and publicly call him what he is; a scumbag screwing average Americans out of tax $$ to aggrandize himself in some way. We do that and this nonsense might stop.

    • chrisny3 - Feb 16, 2011 at 4:23 PM

      Near 100% agreement? No way. I hope they nail the cheat and throw the book at him. There are many others who agree with me.

      • cur68 - Feb 16, 2011 at 4:52 PM

        Just counting posts on this article. Using common statistical measures (till you weighed in) and the standard 5% alpha, it was damn near 100%. Even with you counted I believe its still statistically close enough to 100% to call it that. Use SPSS and check for yourself if you don’t believe me.

      • chrisny3 - Feb 16, 2011 at 5:28 PM

        Oh, OK, if you’re just saying near 100% agreement on this small blog entry, then OK. But this small sample size I bet is not representative of MLB fans in general.

        I would bet at least half of baseball fans are with the “buffoons” in this case.

  8. chrisny3 - Feb 16, 2011 at 4:21 PM

    “I don’t believe that the government should be casually bringing “yeah, I bet we can convince some people of this” kind of cases.”

    It’s not just that. It’s a “yeah, I bet we can convince some people of this and send a message that you just can’t lie under oath to a grand jury” kind of case.

    I don’t know why you think this will hurt the grand jury process. I think this will only help it. I think most successful prosecutions — especially in high profile cases — have the positive effect of sending a message to potential offenders.

    And, as a baseball fan, I think a successful Bonds prosecution will send a strong message to other players in the game that they could end up in prison too if they cheat and lie about it. So it sets an example for both the justice system and MLB. It’s a good thing.

    I hope the “buffoons” win.

    • Craig Calcaterra - Feb 16, 2011 at 4:30 PM

      Personally I don’t think the criminal justice system should, even in part, be used to enforce rules of professional sports leagues. Perhaps we just differ on that.

      As for the grand jury process: whether or not Bonds was trying to deceive prosecutors — and I’ll grant that he probably was — the fact is that the transcript of his testimony, which I have read in detail on a number of occasions, reveals a series of vague and lazy open-ended questions by the government and some vaguely equivocal answers by Bonds. He was able to get away with those vague and equivocal answers because of the lazy questions, in fact.

      No matter what happens in this case, the grand jury system is harmed. If the government wins, prosecutors know that they can obtain relatively easy perjury convictions if they want them. All they have to do is to be sloppy and hope they trip the witness up. If Bonds win, defense lawyers will learn that playing dumb is pretty smart.

      The grand just system is an information gathering system just as much as it as a means of getting indictments. When there are rewards given for the exact opposite of that — for the prosecution and for the defense to thwart that — the system loses.

  9. chrisny3 - Feb 16, 2011 at 5:44 PM

    “I don’t think the criminal justice system should, even in part, be used to enforce rules of professional sports leagues.”

    But that is not what is happening here. The trial is only taking place because Bonds lied under oath. If he had simply answered like Giambi, the criminal justice system wouldn’t be involved now.

    “If the government wins, prosecutors know that they can obtain relatively easy perjury convictions if they want them. All they have to do is to be sloppy and hope they trip the witness up.”‘

    If they can show that a witness was being intentionally misleading, then he/she deserves to be indicted. I’m sure if they weren’t “sloppy” in their questions, Bonds still would have lied. Regardless, it will be up to the jury to decide if the sloppiness of the questioners somehow mitigates Bonds lying.

    “When there are rewards given for the exact opposite of that — for the prosecution and for the defense to thwart that — the system loses.”

    How did the prosecution “thwart” the gathering of information in the BALCO grand jury? Didn’t they get enough convictions or plea bargains out of it? Isn’t that the ultimate goal of this information? Doesn’t “thwart” imply some intentional action? How can one say the prosecutors’ sloppiness was intentional? The system will lose if it fails to convict Bonds and rewards him for his willful attempt to “thwart” the process through his lies

    • Craig Calcaterra - Feb 16, 2011 at 6:03 PM

      You said ” I think a successful Bonds prosecution will send a strong message to other players in the game that they could end up in prison too if they cheat and lie about it. So it sets an example for both the justice system and MLB.”

      What part of (a) incentivizing players to not break workplace rules; and (b) sending a message to MLB is not using the justice system to benefit professional sports leagues?

      “I’m sure if they weren’t “sloppy” in their questions, Bonds still would have lied.”

      Maybe, maybe not. Go read his tesitmony. He did what a good patient hitter always does: he took what was given him. When a prosecutor asked him a compound question, he answered the part that he could be truthful about and glossed over the other part. If the questions were put to him cleanly and cogently he very well could have done what most people do when there is no way out of something: tell the truth. And if he didn’t, it would at least be a big, stark shiny lie that would have inspired a plea bargain or at the very least way less litigation gymnastics we’ve had for the past several years, and much of this waste would have been avoided.

      “Regardless, it will be up to the jury to decide if the sloppiness of the questioners somehow mitigates Bonds lying.”

      Yes, it will. But I contend that the prosecution has a much greater responsibility than that. The prosecutor is not merely an advocate who should bring any case he figures he can win. He has is tasked with a dual role: that of prosecuting people and that of sanely and cogently administering the justice system and its scarce resources. In this case the prosecution has failed miserably at that second job. In my opinion.

      “How did the prosecution “thwart” the gathering of information in the BALCO grand jury?”

      The clearly believed that Barry Bonds’ truthful and explanatory testimony about BALCO was essential to their case and the administration of justice. If they did not think it was essential they should not have called him. That they are charging Bonds with obstruction of justice means, by definition, justice was obstructed. I and just about every lawyer who has taken a look at the grand jury testimony has been able to see how, if the government had even tried to nail down Bonds with the kinds of questions and followups that your typical second year law student is trained to ask, Bonds would not have been able to weasel and obstruct the way he appears to have done.

      • chrisny3 - Feb 16, 2011 at 6:31 PM

        “What part of (a) incentivizing players to not break workplace rules; and (b) sending a message to MLB is not using the justice system to benefit professional sports leagues? ”

        Because those two things are merely incidental by-products of a Bonds prosecution and conviction. The reason the prosecution went after Bonds here was NOT to impact MLB in any way. It was simply to further their own anti-steroids trafficking agenda and to send a message to the general population that lying to a grand jury is not acceptable.

        “He has is tasked with a dual role: that of prosecuting people and that of sanely and cogently administering the justice system and its scarce resources. In this case the prosecution has failed miserably at that second job. In my opinion.”

        I guess we will agree to disagree. I think both the prosecutions of Bonds and Clemens are worthwhile. I’m glad they are spending my tax money trying to put those two lying cheats in jail.

        “I and just about every lawyer who has taken a look at the grand jury testimony has been able to see how, if the government had even tried to nail down Bonds with the kinds of questions and followups that your typical second year law student is trained to ask, Bonds would not have been able to weasel and obstruct the way he appears to have done.”

        Still, “thwart” implies some willful and intentional act. That was not the case here. Sloppiness and/or human errors on the part of questioners does not equate to an intentional act meant to “thwart” the justice system. Prosecutors make honest mistakes every day. You can’t honestly say they are “thwarting” the justice system every time it happens.

  10. sabathiawouldbegoodattheeighthtoo - Feb 16, 2011 at 6:06 PM

    The bigger question is, why were baseball players testifying in front of Congress etc in the first place. When does the NFL go before Congress? How about pro-wrestling?

    It reminds me quite a bit of Ken Starr. The guy was hired to investigate Hillary’s old lawfirm, and ends up getting Bill on perjury for lying about sex with an intern, and the GOP praised him for winning.

    I’m sure if you put anyone in the witness chair and ask enough questions, you’ll eventually get them to lie, or at least hedge as Bonds did, on some topic or other. It’s a witch hunt.

    • chrisny3 - Feb 16, 2011 at 6:37 PM

      Bonds never testified before congress. He was caught up in a criminal investigation that initially had as much to do with track and field and football as it did about baseball.

    • chrisny3 - Feb 16, 2011 at 6:39 PM

      But … since YOU brought it up, I am glad congress got involved with MLB because if they hadn’t, we’d still have players doing PEDs today and experiencing fictitious unworldly late-career peaks unlike any which have been seen in the game before.

  11. therealdrudixon - Feb 17, 2011 at 8:43 AM

    Wholeheartedly agree this is a complete waste. Steroids should be legalized, period. Most athletes use them, cycle short half-life steroids in the offseason. Athletes have been using since the 50s. No notation, asterisk etc is marked on their names. When Ben Johnson was stripped of his medal, it was given to Carl Lewis, who coincidentally tested positive for speed. I compare steroids to laser eye surgery or even Tommy John surgery. They all allow you to do things you weren’t born to do.

    For a good perspective, watch “Bigger, Stronger, Faster”

    • chrisny3 - Feb 17, 2011 at 9:09 AM

      Yes, let’s become the only modern country in the entire world that allows athletes to use anabolic steroids. That isn’t sport. It’s who has the best chemists, suppliers, and is reckless enough to put their own body at risk for the extreme side effects of steroids.

      • cur68 - Feb 17, 2011 at 8:25 PM

        Wow, discounting your multiple posts chrisny3 (I count each poster only once as they’ve registered their opinion) still statistically 100% against prosectuion. Where are the rest of your ‘buffoons’? Judging from other posts on other topics posted opionions are rarely as one sided as this one. You claim 50% of the population would go ahead with the prosecution. However that should reflect in ~ 50% of posts in this small sample corroborating you as even a small sample should reflect the population mean. Hell I’d give you the benefit of the doubt if it was 75/25 against. It’s not even close.

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