Barry U.S. Bonds
A few irregularities to ponder as the feds finally haul the home run king to court
The thing to realize about the BALCO steroids scandal, which lurches into its most headline-grabbing phase yet today when baseball home run king Barry Bonds is arraigned on five counts of perjury and obstruction in a San Francisco courtroom, is that the federal government's underlying criminal case has been closed for more than 28 months.
On July 29, 2005, Ukrainian-born track coach Remi Korchemny pleaded guilty to a lone misdemeanor charge of distributing the legal stimulant modafinil without a prescription, a crime that netted him not a single day behind bars. Two weeks prior, Bay Area Laboratory Co-operative (BALCO) founder Victor Conte and Barry Bonds' personal trainer Greg Anderson (also affiliated with BALCO) each pleaded guilty to one count of conspiracy to illegally distribute anabolic steroids and one count of money laundering, for which they served four months and three months in prison, respectively.
A fourth defendant, BALCO Vice President James Valente, copped to a single count of conspiracy and was sentenced to probation, meaning that in the most publicized steroids investigation in U.S. history, 40 of the original 42 charges—which were announced with great fanfare by then-top cop John Ashcroft in February 2004—were dropped faster than a Tim Wakefield knuckleball, resulting in a combined seven months of prison for the criminals. As the steroid prohibitionists at the San Francisco Chronicle wrote at the time, with palpable disappointment, the criminal case "seemed to end with a whimper."
But there's plenty of evidence that the prosecutorial "bang" in this interminable case (of five-plus years and counting) has always been more about publicly shaming elite athletes and punishing witnesses who don't cooperate with the feds than rooting out any vast criminal conspiracy.
Take sentencing, for example. Bonds' trainer Anderson did his three months behind bars, but was then twice hauled back to prison on civil contempt charges for refusing to testify in front of grand juries investigating his boss for perjury. Total time of incarceration for non-cooperation? Fourteen months. He was released the day of Bonds' indictment [PDF], leaving his defense team, led by high-profile lawyer Mark Geragos, sputtering with fury.
"It's infuriating, when you read the indictment," Geragos told the Chronicle. "Is there anything in that indictment that wasn't known a year ago? If that is the case, clearly, putting Greg in for a year was not only punitive, but was misleading the court in that [federal prosecutors] said his testimony was indispensable for the investigation. […] The whole thing is a crock of shit. He's never said word one."
Anderson is hardly the only bug on the windshield of what has now been a three-grand jury process. Chronicle reporters Mark Fainaru-Wada and Lance Williams, co-authors of the best-selling Bonds/BALCO expose Game of Shadows (soon to be an HBO movie), were sentenced to 18 months for contempt in refusing to divulge the source of the grand jury leaks they published to spectacular effect within hours of the most famous witnesses' testimony. They would likely be in prison right now had not Troy Ellerman, the lawyer for fourth defendant James Valente, admitted at the last minute to being the leaker. Ellerman is currently serving out a 30-month sentence for obstruction of justice—by far the longest prison term in the BALCO case.
It's no wonder that the original four BALCO co-defendants are spooked about a Sept. 11, 2007 court order that they return or destroy all court-provided documents relating to their cases. In a scandal that has long since passed into the tail-chasing phase, every interaction with the punitive-minded courtroom is a potential charge of perjury, obstruction or contempt. "Given this history," their motion reads, "Mr. Conte, Mr. Anderson and the other moving parties have more than a speculative fear that the Court's order will expose them to renewed threat of prosecution."
The government's priorities were on stark display in October when lead Internal Revenue Service BALCO investigator Jeff Novitzky—a man who, according to a damning May 2004 Playboy magazine profile, had lobbied various federal agencies for years to launch a steroids sting, "always with Bonds as the lure"—squeezed a plea deal out of track and field superstar Marion Jones. "To extract her confession," the New York Times wrote in a mostly flattering profile of Novitzky last month, "he used the leverage of a more serious charge from an unrelated check-fraud scheme." Getting Jones to weepily admit in public that she'd been lying all along about steroids, it seems, was more important than ferreting out her role in "a scheme to defraud numerous banks out of millions of dollars by laundering stolen, altered and counterfeit checks."
Barry Bonds was investigated—by two grand juries—on a more serious charge as well: tax evasion. But all that's left now is a case in which, as Columbia Law School professor John C. Coffee Jr. recently put it in the New York Times, "Bonds's prosecution seems likely to rely to a greater degree on circumstantial evidence, making it harder for the government than in its recent prosecutions of Martha Stewart and I. Lewis Libby. Those cases involved factual disputes. Bonds, however, is contesting not whether he consumed steroids, but only what he believed he was doing."
To build that case, the government will likely subpoena yet another Murderer's Row of professional ballplayers, put Greg Anderson on the dock once more (exposing him this time to criminal contempt, instead of just civil contempt), and leverage the soon-to-be released findings from a blue-ribbon steroids panel chaired by former Senate majority leader George Mitchell (with the charitable assistance of one Jeff Novitzky). Perjury traps will spring up like mushrooms, not just in Bonds' proceedings, but in the forthcoming trials of Jones' former coach Trevor Graham (for lying to a federal agent) and Olympic cyclist Tammy Thomas (perjury).
The results of this publicity blitz are 100% predictable—Barry Lamar Bonds will be declared guilty with prejudice in the court of public opinion long before his case ever reaches a verdict. Meanwhile, Major League Baseball will continue toughening its testing and punishment standards for banned substances, and Congress will continue adding penalties to the illegal distribution of legal substances. It may not be justice, but from the federal government's point of view it will be Mission Accomplished.
Matt Welch is an editor at reason.