Regarding Barry Bonds

By JCB on Wednesday, November 28, 2007

I haven’t been following the Barry Bonds indictment story that closely. I heard about it on ESPN when the story broke, and elsewhere on some news channels, and I read a few pieces online here and there. I figured—like most of us probably figured—that our intuition turned out to be right, that Bonds must have tried to cover something up, that he must have not only used steroids but used them knowingly and lied about it, and that the government had finished up its investigation and so was ready to reveal its evidence proving all of this.

The media didn’t help with avoiding our jumping to this conclusion. The familiar refrain was that “If convicted on all counts, Barry Bonds could spend as many as 30 years in jail.” They all quoted the indictment, but never refuted the suggestion that this would lead to a conviction of some sort, effectively suggesting conviction in listener’s minds. Not once did anyone I heard mention that having enough evidence to get an indictment is a long way from having enough evidence to convict. It may be that Bonds is guilty, but regardless, initial portrayals painted it that way.

Last weekend, in any case, I had a little time to kill while drinking some coffee, so I finally read the indictment court document.

My reaction: “That’s it???”

Now, I’m not inclined to have any personal sympathy for Bonds. Few of us are. He has failed to demonstrate any level of forthrightness so far as I’ve noticed, and continued to swagger and strut with seeming arrogance after every homerun. It’s the last part that rubs us: it’s not the absent confession—or not just the absent confession, anyway; it’s the brassy attitude in denial.

But, I expected more in the document than paragraph 9, the only sentence suggesting the existence of evidence that will support charges of perjury and obstruction of justice: “During the criminal investigation, evidence was obtained including positive tests for the presence of anabolic steroids and other performance-enhancing substances for Bonds and other professional athletes.”

I expected at least something more suggesting what the evidence might be. I know the prosecution does not have to reveal more, and moreover that it’s in their interest not to reveal it. But still... the link between that sentence and perjury is an awful big gap.

As I continued to read the portions of Bonds’ grand jury testimony allegedly giving rise to the charges, several questions materialized: What evidence do they have? Could they have? Can the prosecution actually win? Can they actually prove that this stuff happened, and Bonds was knowingly complicit, and was trying to deceive the investigators? Why indict now, finally?

I’ll say this much now, however, even before we learn the answers (if ever we do): They will need a lot more than the positive tests for steroids they mention to convict Bonds on perjury and obstruction of justice. These are not easy convictions. Given their difficulty, it certainly invites speculation as to what we can read between the lines, trying to figure out what the prosecution is trying to achieve—a conviction of Bonds, or something else?

On the timing question, though, it’s just as easy to ask, why not now? On that, though, the retort is easy: why not sooner?

Maybe they found new evidence. Maybe they were waiting it out, hoping they would find new evidence and now they’ve reached the point of diminished returns on the investigation. Or maybe it’s less about speedy justice and more about other concerns, like the imminent departure of the lead prosecutor, or waiting until Bonds broke Aaron’s record to avoid accusations that the justice department used an indictment to prevent Bonds from reaching it. (Duff Wilson & Michael S. Schmidt hit on these and even more reasons in the New York Times last week.)

Or, taking the idea that the prosecution waited until after Bonds hit 756 because they wanted to avoid accusations of preventing Bonds from reaching the record a step farther, maybe the prosecution thinks that 1) now that Bonds owns the homerun record and 2) is an aged free agent with limited contract prospects, he would be more likely to either accept a plea agreement, and provide more substantial testimony about everything that happened, because Bonds has less to lose by cooperating.

In support of this, consider the fact that evidence already demonstrates that Bonds used performance-enhancing drugs. His testimony admits that his trainer, Greg Anderson, rubbed oil and cream on Bonds, substances later shown to be illegal drugs, and we’ve known this since 2004. To many hall of fame voters and in public opinion, this evidence is damning enough, tainting his accomplishments irrespective of whether Bonds used these or other drugs knowingly.

True, the evidence should have never come out because Bonds’ testimony was sealed. The attorney defending the Vice President of Balco was sentenced to 2.5 years in jail as part of a plea agreement admitting he leaked grand jury testimony, including Bonds’. (You can read the DOJ’s press release here.) But it surfaced in any case, and what’s done is done. We know.

I can’t help but wonder whether that leak actually sort of messed up the prosecution’s plan. If they were after a plea agreement by Bonds all along for his role in the Balco occurrences, however minor, or additional testimony against others involved, the threat of indictment for perjury arising out of sealed testimony may have been stronger leverage than an indictment for perjury arising out of leaked testimony. That part of the indictment that would have been juicy—the positive tests—are now old news because we already knew drugs reached Bonds some way or another. The issue changed from whether Bonds used, to whether he had knowledge about it, and frankly, to some people only the former question ever mattered.

Maybe Bonds will get in to the hall of fame and maybe he won’t, regardless of any subsequent legal proceedings, but there’s no doubt he has much less to lose after last season than before. So, maybe now they’re hoping for a change of heart?

I guess we’ll just have to wait and see how it unfolds. Bonds has never seemed like the type to plea bargain, though, so I wouldn’t be surprised if he calls what might be the prosecutor’s bluff and forces a trial.

As for a trial, there are four charges of perjury. Paraphrasing closely,

  • Charge 1 alleges Bonds testified falsely when he denied knowingly taking steroids given to him by Greg Anderson, and when he denied taking steroids in the weeks and months leading up to November 2000, and when he denied obtaining testosterone from Anderson and denied taking “any other steroids.”

  • Charge 2 alleges Bonds testified falsely when he denied that Anderson or Anderson’s associates ever injected him with a syringe, or gave him a substance that had to be taken via syringe.

  • Charge 3 alleges Bonds testified falsely when he denied that Anderson gave Bonds Human Growth Hormone or gave Bonds something he understood to be Human Growth Hormone, and when Bonds denied obtaining Human Growth Hormone from Anderson.

  • Charge 4 alleges Bonds testified falsely when he denied taking the cream and the clear from Anderson other than during certain admitted periods of time, and when he denied having recollection of taking these substances during other periods of time.

Given that they will have to prove not only facts contrary to the facts given by Bonds, but also that Bonds intentionally gave false testimony as to these facts, I’m awful curious and a bit skeptical about what evidence the prosecution can offer to prove that Bonds is guilty of perjury. Some of the charges depend on proving facts consisting of what Bonds knew, which is inherently difficult. Others—like the stuff about a syringe—depend on proving facts consisting of what happened. Whether their evidence is sufficient, whether they can prove beyond a reasonable doubt that Bonds intentionally lied about any of these facts, is the question we’re all wondering, and the indictment doesn’t reveal a single thing.

Remember, too, that the potential star witness, Greg Anderson the trainer, the one guy who could most easily incriminate Bonds, went to jail to avoid testifying against his client. But they indicted Bonds anyway, so they must have had some other evidence. It’s interesting that Anderson is now released from jail—the theory being that there’s no point in keeping him in jail if they indicted Bonds without him—and it will be even more interesting to see whether Anderson testifies if the proceedings reach trial.

What else can there be for evidence? Anyone's guess is as unlikely to be right as anyone else's. But like I said, I’m not only curious, I’m skeptical. The prosecution has a difficult burden of proof on a difficult charge of perjury. There would have to be very strong evidence, it seems to me, like someone else witnessing Anderson injecting a syringe into Bonds, or clear statements by Bonds to someone besides Anderson who is willing to testify, proving Bonds had certain knowledge, or maybe once it reaches trial they can get Anderson to testify after all and they’re counting on that.

Who knows. Very few I suppose, and they're keeping it close to the vest on both sides of the aisle. It could definitely make for a theatrical trial; but it could also make for an acquittal, forever giving Bonds a rebuttal to those raking him over the coals. At this point, it's all on the unknown evidence.

And, I can't help but wonder if there's enough to convict.
Posted Wednesday, November 28, 2007 by JCB


Another point that I heard made on the radio that I find interesting. Bonds has never flot out denied taking steriods. He has just denied knowingly taking steriods. Semantics, I thinkis the appropriate word here.

Anyone looking for this case to cause baseball to do something to Bonds is likely out of luck as both Bonds and Gary Sheffield have both essentially admitted taking steriods, just not knowingly. If baseball was going to do something, they should have a long time ago. It will be intersting what the Mitchell Report says regarding Bonds and other players assuming it ever gets released. I am guessing this keeps any team from signing Bonds for next season and he kind of drifts out of sight as time goes on.

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Sincerely, JCB

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