Why Barry Bonds?

04/08/2011 03:04 pm ET | Updated Jun 08, 2011

As this is posted, a jury is deliberating whether Barry Bonds lied to a grand jury about using steroids -- but concerning the point being made here, the result of those deliberations won't really matter, one way or another. The four-year investigation into steroid use by elite athletes netted a few fish -- e.g., Marion Jones pleaded guilty to making false statements to federal investigators about using steroids -- but otherwise was an enormous commitment of federal criminal resources to prove a claim that virtually nobody in the public or the media doubts.

Many elite athletes cheated, including, most would agree, Barry Bonds. They used drugs to improve their performance, and many of them then lied about it. And many big names have been left alone by the investigators. Not so with Bonds. Indeed, he has already been convicted in the court of public opinion. After all, anyone could view life sized "before" and "after" billboard photos of Bonds next to one another and realize he used steroids during his heyday (unless the viewers were willing to buy an alternative hypothesis -- that Bonds had been on a strict potato and cannoli diet). The question is whether a jury trial was necessary to rubber-stamp that "conviction," along with some of the most humiliating testimony heard in a courtroom, litigated by a Justice Department that has been accused recently of numerous violations of the rights of defendants.

Federal prosecutors called Bonds into the grand jury knowing that, as a practical matter they could not convict him of any substantive crime involving steroids, such as possession or use, without the existence of the actual physical evidence.

The ostensible purpose of the Justice Department was to investigate the Bay Area supplements lab (BALCO) for steroid distribution and money laundering. But it is perfectly obvious that the government's covert purpose all along was to use the "back door" approach to try to get Barry Bonds for perjury, even though the government knew the identities of dozens of other elite athletes who used performance enhancing drugs. It is absolutely clear from the evidence that Bonds was the target all along -- he was the highest profile athlete and steroid user in the modern sports era. One is almost tempted to compare the government's drive to get Bonds on anything criminal with the government's desperate effort nearly a century ago to get Al Capone on anything, which they managed to do -- income tax violations.

The prosecutors planned to trap Bonds into committing perjury. They summoned him into the grand jury knowing full well that he would lie -- as he would almost have to do -- when asked directly whether he ever used steroids. The interrogators knew he would lie in the same way that the interrogators knew that Martha Stewart and Scooter Libby would lie, and lest we forget, that President Bill Clinton would lie about having sex with a White House intern.

Bonds couldn't avoid testifying before the grand jury. He was legally compelled to testify. He didn't testify voluntarily to clear his name, as Roger Clemens did by essentially demanding to testify before a Congressional committee. Bonds had no choice. The prosecutors obtained from the federal court a witness compulsion order "directing" that Bonds testify or be held in contempt of court and jailed if he refused. By that court order, Bonds was stripped of his Fifth Amendment privilege not to testify, and placed in "trap-like" predicament -- either he testify truthfully, lie and be prosecuted for perjury, or be held in contempt if he refused to testify, as did his trainer Greg Anderson, who remains in prison today -- precisely for refusing to testify against Bonds.

The trap worked like a charm. The federal interrogators knew that if Bonds actually admitted to using steroids, he likely would never enter the Hall of Fame (given the non-Frisco public sentiments about him), even though he couldn't be prosecuted. But if he lied about anything relevant to using steroids, for example, about whether he was given a steroid, whether he was injected with anything other than by a doctor, whether he knew that the initials "BB" that appeared on a document referred to him, or whether he even discussed steroid use with anyone, the prosecutors knew they could prove these answers were false. Thus, by virtue of the government's control and manipulation of the grand jury, the government orchestrated the grand jury charade whereby Bonds was set up to be prosecuted for perjury or obstruction of justice -- as indeed he was.

What is the sense of all of this? Will the prosecution of Bonds, whether he is found guilty or not guilty at day's end, encourage people to cooperate with the authorities, even if that means testifying against oneself? Or does this case simply reinforce the belief of those who follow prosecutorial conduct that the perjury charge is one of the prosecutor's most potent and unregulated weapons of choice, trotted out of the prosecutor's arsenal when prosecutors have evidence against a person that is highly embarrassing and potentially detrimental to his reputation, even though not criminal? And does it also show that if a prosecutor wants to "get" a person by using a grand jury and compelling the person to appear and testify, a prosecutor can accomplish that objective, however insidious the motivation?

Clearly, grand juries and the courts that empanel them have an institutional right to demand that witnesses who appear tell the truth. Indeed, if witnesses are summoned to the grand jury, our system will work only if there are penalties for giving false testimony. But if prosecutors are allowed to manipulate the process by not having a legitimate reason to subpoena a witness except to trap the witness into lying, in the long run the integrity of both the prosecutors and the administration of justice will be harmed. Clearly, Bill Clinton had to testify. As a practical matter, as president of the United States, he had no choice. But what about lesser lights? Even the highest paid ballplayer is a lesser light. If the lesser light has a "choice" not to testify but does so anyway and gets prosecuted for it, just think about the willingness of the next witness to step up to the plate when he can just as easily "sit this one out." We should want witnesses to be willing to testify. Let's not discourage them. At the end of the day, the Bonds prosecution will have proven to be a discouragement, even if Bonds is found guilty as charged.