Posted by Todd Zywicki: Will Barry Bonds Be Indicted? http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1154008125
I just finished listening to [1]Game of Shadows: Barry Bonds, BALCO, and the Steroids Scandal that Rocked Professional Sports. It is a fascinating and engrossing book. Based on what I had heard, I was surprised at how much of the book was about doping in elite track and field as much as baseball. The other thing that was amazing to me is how cheap this stuff is--a years supply of steroids seems to price out at about $5,000, a real pittance for a professional athlete. It is being reported that Bonds is being investigated by a grand jury on charges of tax evasion and perjury. The tax evasion charge stems from Bonds allegations that Bonds failed to report income from the sale of autographed memorabilia and diverted those funds to maintain his mistress, Kimberly Bell. This is a pretty straightforward tax case it seems and I'm going to leave it aside for now. The interesting issue is whether Bonds is going to be indicted on perjury charges arising from his testimony to the grand jury that he never knowingly took steroids (I'm going to use "steroids" as a shorthand for performance enhancing drugs). The first grand jury terminated without indicting him. I understand that the grand jury is supposed to permit the indictment only if there is probable cause that he committed a crime. But assume that the indictment will come down only if the prosecutors think that they can prove the charge beyond a reasonable doubt, which I understand to be the [2]typical practice in such things. Regardless, what I'm interested in here is whether the prosecutors will be able to prove perjury beyond a reasonable doubt. Now, after reading the book and other coverage, and looking at Bonds with my own eyes, I am comfortable concluding that the preponderance of the evidence supports the conclusion that Bonds took steroids or human growth hormone. It is being reported that Bonds's trainer [3]Greg Anderson will again refuse to testify before the grand jury about Bonds's supposed steroid use. After reading the book, it seems to me that unless Anderson testifies, the feds very well may not be able to prove beyond a reasonable doubt that Bonds knowingly took steroids. Those who have also read the book may remember some details that I am forgetting, but from what I recall, there is very little direct evidence--and perhaps none--that could prove that Bonds knowingly took steroids. Based on my recollection, everything he did was done through Anderson, and Anderson alone. Without Anderson's testimony, it is not clear to me that the feds can get him. Perhaps the strongest evidence that Bonds knowingly took steroids is the complete absurdity of his testimony before the grand jury (assuming the book's report is accurate). Bonds reportedly testified that Anderson would periodically bring him supplements and ointments and he would simply ingest them or rub them on simply to humor Anderson. He claims he never asked what they were and simply assumed they were flaxseed oil and arthritis cream. The book also reports that Bonds told Gary Sheffield (who supposedly also took performance enhancing drugs while training with Bonds) not to ask any questions and to just take what he was given, i.e., that he didn't want to know too much. This whole story seems preposterous, and combined with other circumstantial evidence such as his seemingly bigger head, etc., it seems to me that it is more likely than not that Bonds knowingly took steroids. But without Anderson's testimony, the direct evidence seems thin (assuming that the book reports all the evidence). All of this is based on the best of my recollection from the book. First, Bonds has never admitted taking performance-enhancing drugs, even under oath with immunity to the grand jury (the basis of the perjury charge). Second, I don't recall anybody in the book specifically stating that they saw Bonds taking what was unquestionably steroids. If I recall correctly, Bell never looked in Bonds's "man bag" to see what was in there. Nor did she ever actually see Anderson give him a shot of steroids--her story was that Bonds and Anderson would go into the bedroom with the man bag and close the door and she simply assumed that Anderson was shooting him with steroids. Third, Bonds never referred to taking steroids, but rather to "the shit" or "the stuff" or "the junk" or similar comments. Third, nobody other than Anderson ever gave him shots. Fourth, I don't recall Bonds ever directly buying steroids from BALCO. Rather, the standard transaction was that Anderson would buy everything for Bonds and keep track of his protocol. Every once in awhile Bonds would give Anderson 10 or 20 thousand dollars for vaguely defined "personal training" services. So there weren't identifiable Fed Ex packages to athletes (as with most of the athletes). Nor were there money deposits directly from Bonds into Victor Conte's bank account (the head of BALCO) from Bonds, as there were from other athletes. Nor did Bonds regularly appear at BALCO to buy stuff. He rarely communicated with Victor Conte. All of this was handled by Anderson. Finally, to the best of my recollection, Conte never specifically listed Bonds as one of the athletes to whom he sold performance enhancing drugs, although he [4]named names on other occasions. And Conte has [5]specifically denied selling steroids to Bonds. Again, here's the trick--he has admitted selling steroids to Anderson, so this may be semantic. But he may not have any actual proof that Anderson was buying it for Bonds. The only time that Conte seems to have specifically mentioned Bonds was during a long interview with IRS agents on the day of the BALCO raid, which Conte later called a fabrication. Amazingly, the federal agents didn't record the conversation with Conte, and Conte almost immediately denied the government's description of it. On a related note, this seemed just one of several things that the feds did during the investigation that just seemed completely incompetent to me (such as the way that Conte learned that the feds were searching BALCO's trash). He did get his urine tested on at least one occasion (Anderson later said the vial should have had his name on it). And Anderson reportedly had some doping calendars at his house. But those alone seem like a stretch. 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. So if Anderson does not roll over on Bonds, can the prosecutors prove beyond a reasonable doubt that Bonds perjured himself before the grand jury when he denied knowingly taking steroids? For those who have followed the case and/or read the book, remind me of any specific, provable facts that I have forgotten, especially about any specific eyewitness accounts of Bonds getting shots or any paper trail that specifically connects Bonds to performance enhancing drugs, rather than just Anderson. This may explain why the government has so far been unable to indict Bonds without Anderson's testimony, as well as why they are pushing on Anderson so hard to get him to testify. Wihtout 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). References 1. http://www.amazon.com/gp/product/1592401996/sr=1-1/qid=1154003781/ref=pd_bbs_1/103-9248164-8433439?ie=UTF8&s=books 2. http://www.nydailynews.com/front/story/434215p-365815c.html 3. http://www.washingtonpost.com/wp-dyn/content/article/2006/07/26/AR2006072601988.html 4. http://www.ktvu.com/balco/3967747/detail.html 5. http://sports.espn.go.com/espn/news/story?id=2389940 _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
