11/24/2007 08:06 pm ET | Updated Nov 17, 2011

Convict Barry Bonds with Evidence, Not Charges

The late Justice Lewis Powell said it best: "This Court has declared that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial." Taylor v. Kentucky, 436 U.S. 478, 485 (1978). Although it was Justice Blackmun rather than Justice Powell who was known as the baseball fan on the U.S. Supreme Court, it is useful to remember Justice Powell's words when dealing with the case of United States of America v. Barry Lamar Bonds.

The United States of America has charged Barry Lamar Bonds with four counts of perjury [18 U.S.C. §1623(a)] and one count of obstruction of justice [18 U.S.C. §1503]. The operative word here is "charged."

Very few people will argue that Barry Bonds is a nice man, that he has a warm and bubbly personality, or that he serves as a model for anyone to emulate. The general impression seems to be that on a scale of one to ten (with Stalin or Hitler being a one and Mahatma Gandhi a ten), Bonds is a two. And that's from his friends.

The presumption of innocence does not, however, exist merely to benefit people we find decent, good and admirable. They are, in fact, the people who need it least. The presumption exists to protect anyone hauled before a court to answer charges; you, me, the alleged drug dealer or child molester, and the current holder of Major League Baseball's career home run record.

The charges detailed against Barry Lamar Bonds basically provide that he was granted immunity from prosecution on December 4, 2003 (before his testimony to a federal grand jury) and that pursuant to that immunity the right against self-incrimination was removed: So long as he testified truthfully his testimony could not be used against him. The immunity did not, of course, cover grand jury testimony that was false or which amounted to perjury. Bond was asked about certain alleged acts and he denied them.

The government claims that these denials were examples of the "false exculpatory no" and that they were made with knowledge of their material falsity. In order to prove the perjury charges the United States must prove beyond a reasonable doubt that Bonds' denials were false and were made with knowledge of their falsity. It is an indictment that leaves little wiggle room: He cannot be convicted unless the government proves the "denied facts" were indeed true. Bonds and his supporters could not, following a conviction, say that conviction does not mean that he used steroids, human growth hormone or "the cream and the clear" since conviction would mean exactly that.

I have no idea when the presumption of innocence became a dead letter as far as the American media are concerned. The government has charged Barry Bonds with a crime and the charge is viewed as tantamount to a conviction. No one has bothered to note that the evidence in support of the government's charges has not been revealed, let alone tested by cross-examination. Bonds is not viewed - as he is entitled to be viewed - as an innocent man. And should it be proven by competent evidence adduced at trial that he is in fact innocent of these charges, this fact will not mean one blessed thing to those who have concluded that he is guilty as sin and that nothing as trivial as a verdict rendered by a jury after trial is going to convince them otherwise. This is not justice. This is Stalinism. The State says you did it, therefore you did it. And you will be punished accordingly. You say you are innocent? They all say that. If you didn't do it the State would not have said you did. That the argument is idiotic on its face does not stop a solid majority of the American people from believing it.

According to this so-called "Court of Public Opinion", "the people", without having had the benefit of hearing any evidence whatsoever, have concluded that "he did it" and that if a jury duly sworn should conclude, after hearing the evidence, that "he didn't do it" the reason for it is "smart, well paid lawyers." One of the reasons why Authority so often goes after lawyers hammer and tong is because we do have an annoying habit of demanding that the evidence be examined and the law applied. You don't need to go very far back in history to find examples of the government prosecuting innocent men whether for decent or scurrilous motives.

When you try, convict and sentence a man in the absence of any evidence at all (and the government's assertion by indictment that "you did it" is no evidence at all) you are relying on the wrong Lewis. Lewis Powell got it right, Lewis Carroll did not.