Feb 16, 2011, 8:45 AM EST
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.
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