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Former Federal prosecutors question the wisdom of the Barry Bonds prosecution

Mar 11, 2011, 5:58 AM EDT

Barry Bonds

I sometimes get accused of being a lone nut in my belief that the government should not be in the Barry Bonds prosecution business. But it seems that lots of people — including former prosecutors — think this is a waste:

“It’s a questionable use of resources, especially at a time when the budget is being cut, hiring is frozen and fraudsters are running amok,” said Richard Cutler, a former federal prosecutor who now works in Mountain View for the law firm Dechert L.L.P. “To have two or three attorneys, investigators and paralegals working full time on a perjury case against a baseball player raises questions about the prioritizing of prosecutions.”

The Times notes that multiple other prosecutors from the Northern District of California’s U.S. Attorney’s Office have questioned the wisdom of the prosecution and note that Bonds is unlikely to do much if any time.  It’s further noted that the overall BALCO investigation, for all of the years it has dragged on, has resulted in a grand total of 48 months of prison time for the 11 people charged.

Prosecutors make choices every day. I’d be curious to see what sorts of cases this U.S. Attorney’s Office has passed up investigating and prosecuting since 2003 due to lack of manpower, resources or what have you.

  1. Kevin S. - Mar 11, 2011 at 6:06 AM

    What, you mean using the US Attorney’s office to pursue a personal vendetta is an unwise allocation of resources?

    • paperlions - Mar 11, 2011 at 7:14 AM

      Yeah, kind of reminds me of that time a president used the US armed forces to pursue a per vendetta. Hopefully, this doesn’t rise to the $3 trillion dollar price tag of that escapade.

      • garlicfriesandbaseball - Mar 11, 2011 at 3:00 PM

        Comparing Iraq to Barry Bonds is a bit of a stretch, even for a leftwinger.

  2. steve keane - Mar 11, 2011 at 7:43 AM

    When the Bonds/BLACO witch hunt is over I wonder what the NY Daily News will do for “investigative reporting” ? Maybe something substanial like finding who is in charge of City Hall on the weekends when Mayor Moneybags heads to Bermuda?

  3. Old Gator - Mar 11, 2011 at 8:00 AM

    Craig, does that 48 months include the time Bonds’ trainer has spent in jail for contempt? Since that’s not exactly what you’d call a trial on the evidence and conviction, that wouldn’t even count in my book.

    • Craig Calcaterra - Mar 11, 2011 at 8:03 AM

      I don’t think it does. It refers to those “charged” serving that time, and contempt isn’t a charge in those terms. Just an order. It would likely include the five or six months or whatever it was he served as a result of his actual conviction prior to the Bonds-phase of all of this.

      • umrguy42 - Mar 11, 2011 at 10:19 AM

        IF Bonds is convicted, I think his trainer will still have served more time for the contempt business at this point…

  4. Jonny 5 - Mar 11, 2011 at 8:07 AM

    This is one of the problems with our government. “We”, as the people footing the bill have no say in how our our government pisses away our money. Here we are compensating a shortfall of supplies to our soldiers over sea with care packages purchased by volunteers. You know, things they “need”, but don’t get. Meanwhile millions of dollars are literally being pissed away chasing down someone for being a small time steroid user. Because he’s Barry Bonds basically.

    • Detroit Michael - Mar 11, 2011 at 9:12 AM

      We have plenty of say in our government. It’s a representative democracy – we elect people and they govern. Frankly, I’d prefer to have a shorter ballot. I don’t need to elect country drain commissioners and scads of state and local judges.

      • Jonny 5 - Mar 11, 2011 at 9:26 AM

        Keep telling yourself that Mike. If it makes you feel better anyway. When your choice is “Bad” or “Worse” 90 % of the time is that really “plenty of say in our government”. You are told by your party who to vote for. Right or Left, and one of those choices not made by you then become “your choice” through voting.

  5. chrisny3 - Mar 11, 2011 at 8:09 AM

    I’m glad my tax dollars are being used to prosecute this cheat and liar.

    It not only serves to preserve the integrity of the grand jury process, but it will send a message to all pro athletes that the risks of juicing can be considerable.

    • wintwins - Mar 11, 2011 at 8:22 AM

      *the risks of juicing can be considerable for taxpayers.

      • chrisny3 - Mar 11, 2011 at 8:24 AM

        *not nearly as much as the risks of lying

    • Jonny 5 - Mar 11, 2011 at 8:31 AM

      Yes because cheating and lying are such horrible crimes. These are politicians and lawyers tearing into a man for cheating and lying. How ironic… I won’t argue with you, because it’s a waste of time and energy, but we have more pressing matters to throw money at I think. We are literally bleeding money as a country, trillions of dollars in debt with no plan on how to stop it. And with attitudes like yours it’s no wonder we’ve gotten to this point.

      • chrisny3 - Mar 11, 2011 at 8:48 AM

        If you don’t believe lying under oath in a grand jury proceeding isn’t worth prosecuting, that’s ignorant. The integrity of that whole process and its ability to root out crime in all facets of our society is only as strong as the ability to limit lying. It’s the same process that is integral to rooting out lying and cheating among lawyers and politicians.

      • Craig Calcaterra - Mar 11, 2011 at 9:00 AM

        Fact: prosecutors observe actionable and verifiable perjury in the vast majority of the cases they pursue. Fact: they don’t go after the vast majority of those instances of perjury.

        There are reasons for this. One reason to not pursue it is if the perjury did not negatively impact the prosecution in which it occurred. Another reason is if the prosecution of the perjury will be unwieldy and wasteful. The overwhelming number of perjury prosecutions are those that materially interfered with a case and for which there is diametrically conflicting testimony or statements on the part of the testifying witness (former testimony; inconsistent statements to police, etc.).

        Barry Bonds’ perjury did not materially impact the Balco prosecution. Greg Anderson and several others were convicted without the need of Bonds’ testimony. Likewise, Bonds’ alleged lies have required nearly eight years and untold millions to prosecute and, even if they get him now, it won’t be because they have something clear like inconsistent statements from him which show his manifest lies. It will be because they have put on what is, for all intents and purposes a full-blown criminal prosecution, utilizing the kinds of evidence and resources many violent crime prosecutions don’t receive.

        So, no, I don’t believe that prosecuting every perjury case is worth it. Neither do most prosecutors actually. They pick their battles in these matters. Here the prosecutors have picked a strange battle and, even if they get a conviction, a poor and wasteful one that vindicates no concrete interest (like a perp who walked because Bonds lied), only abstract ones.

        Would you have prosecutors pursue every single instance of perjury they encounter? If so, how would you propose they do that without letting far more serious crimes go free? If not, how is this particular prosecution valuable for the justice system? Finally, if your answer is “because lying and juicing athletes are bad,” tell me: where does that stand on the continuum of criminal acts which our system should tackle with its scarce resources?

      • chrisny3 - Mar 11, 2011 at 9:13 AM

        Craig, is it not also a FACT that prosecutors sometimes pick a high profile person to go after precisely because he or she will serve as a better detriment than prosecution of an average Joe?

        To a large extent, that is what’s happening here. So, no, you don’t go after every liar in a grand jury proceeding. But you do go after those you feel will send a big message to the general public.

      • Craig Calcaterra - Mar 11, 2011 at 9:18 AM

        Sure they do. But the point of setting an example is to deter others from like behavior and for showing people that they’ll be in big trouble if they do the same thing.

        It has taken eight years to go after this guy. As is evidenced by the linked article, it has revealed fissures in the prosecution over the prosecution’s very wisdom. In the end, the resources expended will far outstrip the punishment Bonds receives. A very reasonable lesson to take away from this is that, unless you’re big and famous, a perjury prosecution isn’t worth it and that even if they go after you, it will be a long hard case in which the outcome is unclear for close to a decade.

        That’s a deterrent?

      • chrisny3 - Mar 11, 2011 at 9:27 AM

        You really think most people are going to look at the Bonds prosecution in term of how much money or time has been spent in nailing him? Hell no. Most people probably don’t care who he is, aren’t baseball fans, or if they are, aren’t to the extent people on this site are. BUT, most have heard of Bonds, even if they aren’t a baseball fan. So all they’re going to remember is that he got nailed for lying to the government under oath. They’re going to remember that headline the most: “Bonds convicted of lying about steroids.” Some people don’t even bother to read the stories, they just take their news from headlines. And it wouldn’t even be a headline (or story) if he weren’t Barry Bonds. That’s the whole point of nailing someone like him.

      • IdahoMariner - Mar 11, 2011 at 12:01 PM

        Arggh, I HATE jumping in here, but feel like I have to, if only to clear up an inaccurate statement (when Craig is usually so accurate about the legal stuff): after 15 years as a prosecutor, I can say with some authority that the following statement is not accurate:

        “Fact: prosecutors observe actionable and verifiable perjury in the vast majority of the cases they pursue. Fact: they don’t go after the vast majority of those instances of perjury. ”

        Yes, in the small percentage of charged cases that go to trial or to a grand jury, we observe a LOT of people who we believe are lying. But to say that “in the vast majority of cases” we see “actionable and verifiable perjury” is wildly inaccurate. First, it has to be perjury — it has to be a lie about a fact material to the case they are testifying in. So a big chunk of the lying we see is not actionable, because it’s not perjury — it’s just someone lying to make themselves look good or for some other reason. Then, we have to prove they are lying. When it’s one person’s word against another’s, that’s often a tough case to prove — most perjury is not objectively verifiable, it’s a matter of putting on what you believe is the more credible testimony. so, we don’t go after the vast majority of liars, because they are just lying. And if we aren’t going to be able to prove it, or if it’s going to be unreasonably difficult to prove the perjury, we might not prosecute. But if it’s perjury and we have a good case — hell, yeah, go after it. That’s a ridiculously small percentage of cases.

        But yes, it does matter that people lie, and it really matters when they lie about things that matter in the context of a trial. We just CAN’T go after every liar, because every liar isn’t a perjurer, and every perjury isn’t objectively verifiable, so it might be an unreasonable waste of resources. Depends on the case. But we don’t just sit there and watch actionable, verifiable perjury happen in front of us every day without responding. We do have front row seats to a lot of lying, unfortunately, but not all of it is something the law lets us (or wants us) to go after. We go after the lies about the case, to protect the purpose of trial as a truth-seeking function.

        no, I’m gonna go read about some baseball.

      • jkcalhoun - Mar 11, 2011 at 12:02 PM

        So I think the summary of that position is: the time and money is appropriately spent in order to convince people who aren’t really paying attention that it’s bad to lie to the government.

        OK, at least it’s an ethos. But it occurs to me that we’d find plenty of enthusiasm if we took a survey for the idea that it could have been more cheaply and more efficiently done if the anti-lying program had been privatized instead of having been administered by federal prosecutors. Although we may all agree that it’s bad to lie to the government, many feel that because government is wasteful by its very nature it should probably not undertake to make such a point itself or in fact to do anything at all.

        Maybe a no-bid contract to drop leaflets would be cheaper?

      • chrisny3 - Mar 11, 2011 at 2:43 PM

        “So I think the summary of that position is: the time and money is appropriately spent in order to convince people who aren’t really paying attention that it’s bad to lie to the government.”

        Not entirely. To be accurate, it is — time and money is appropriately spent in order to convince people who aren’t really paying attention but will be once the conviction is announced in bold headlines that it’s bad to lie to the government.

        As for your second paragraph, I can’t tell if there is an ounce of sincerity in it. If so, all I have to say is that nothing sends a message quite like a criminal prosecution and the threat of jail time.

      • garlicfriesandbaseball - Mar 11, 2011 at 3:09 PM

        Glad the feds are out there protecting me from those incredible threats to society like Barry Bonds and Martha Stewart. I don’t like lying and cheating either, but at some point common sense has to show it’s head and take over.

    • genericcommenter - Mar 11, 2011 at 9:22 AM

      The biggest “risks” involved in using steroids/drugs or any other consensual individual behavior are the ones created by prohibition. The harm created by prohibition is much greater than any direct health/public health effects.

      • chrisny3 - Mar 11, 2011 at 9:31 AM

        Oh really? So you think they should legalize all hard drugs like cocaine and heroin? And even allow people to take medical anesthetics and mind altering drugs just for the fun of it?

      • Kevin S. - Mar 11, 2011 at 9:52 AM

        That would be like saying in 1933 that calling for an end to Prohibition meant that people wanted to legalize cocaine and heroine. Alcohol abuse is more destructive than steroid abuse, personally and socially and neither rise anywhere near the levels of cocaine and heroin. Enjoying the false equivalence, much?

      • cktai - Mar 11, 2011 at 10:16 AM

        You do not necessarily have to legalise hard drugs, but not prosecuting or prohibiting personal use is actually not such a bad idea. The test cases of the Netherlands, Portugal and Prohibition USA strongly suggest that the decriminalisation of drug use has a decreasing effect on drug use, drug abuse and drug related crime.

  6. joepags - Mar 11, 2011 at 8:49 AM

    shame this guy disappeared from baseball after 1995, he could have had a chance to break the homerun record. o well.

  7. mrznyc - Mar 11, 2011 at 9:28 AM

    ALL prosecutions are money losers – Not the standard to use.

    • clydeserra - Mar 11, 2011 at 9:58 AM

      Of course. But its the opportunity cost we are talking about. The money going to the Bonds prosecution could go to other investigations.

  8. metalhead65 - Mar 11, 2011 at 11:04 AM

    if they did not “waste” money going after him him they would waste it on something else that I don’t like my tax money used for. like say throwing away billions of dollars in foreign aid every year that never gets to the people who need it. how is all that money we gave to hati working out? stop using wasting taxpayer money as an excuse because you don’t like the fact that bonds lied and got caught and now is using whatever means he can to escape prosecution. hey maybe if we stall and use every loophole we can find I will get out of this. maybe that is the reason it is costing so much and not the prosecution. I hope they spend whatever it takes to nail the lying cheating scumbag.

    • garlicfriesandbaseball - Mar 11, 2011 at 3:26 PM

      Yes, I agree Chrisny. I always wanted the feds to go after a certain President who lied about a certain blue dress. But then that’s just me. Why bother with a President when you can go after a baseball player?

      • jkcalhoun - Mar 11, 2011 at 6:13 PM

        That the two are not mutually exclusive is apparent, because that baseball player is going to trial and that president was impeached. — Which is to say, he was brought up on charges before the House of Representatives. To say that that doesn’t constitute going after him, federally speaking, would be as profoundly unconstitutional as anything I’ve heard lately.

        Will the outcome of the baseball player’s trial be similar to the outcome of the impeachment? We’ll just have to wait and see how a jury of his peers decides. The House, however, has spoken.

  9. emossome84 - Mar 11, 2011 at 11:21 AM

    So let’s say Bonds is found innocent, which I keep feeling I am going to hear one day when turning on ESPN. Do they treat him like McGwire and Palmeiro when voting in the hall? Does he get more or less votes than those guys who were caught or admitted using? That’s about the only intrigue I have left in this case, as it feels like it’s been dragging on for a decade now.

  10. garlicfriesandbaseball - Mar 11, 2011 at 7:33 PM

    But, of course, JK Calhoun, Just because I would have liked to seen criminal proceedings and a trial, doesn’t mean it was appropriate, just like I believe the proceedings against Bonds is not appropriate, at least not by a government agency. I was being facetious. Good catch though…..

    • jkcalhoun - Mar 11, 2011 at 9:42 PM

      Facetious is OK with me, having been so myself upthread.

      If we can also have volunteers to be abstemious and arsenious,I believe we will have employed every adjective in the English language that are spelled with the five main vowels in alphabetical order. — A far more worthwhile undertaking than the prosecution under discussion in my view.

  11. casegameaj - Mar 12, 2011 at 11:48 AM

    The myth, truth and consequences of the Barry Bonds perjury trial

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