THE BLOG
12/25/2008 05:12 am ET Updated May 25, 2011

Why Are We Still Prosecuting Barry Bonds?

The difference of opinion on the Barry Bonds case is vast. Since I am a lawyer and don't just play one on TV I tend to look at Monday's developments in a more clinical way. The facts: Bonds' lawyers had made a motion to dismiss most of the counts in the indictment against their client. The judge threw out three of fifteen and asked the prosecutors to consolidate a couple more that she found redundant.

What's left will be taken up in March by a jury that will determine if Mr. Bonds lied under oath when he testified in front of a grand jury that he didn't knowingly take steroids. It is important to note that when he testified he was doing so only as a witness who had been given immunity from prosecution if he told the truth about what he knew of the operation of BALCO Labs. He was not a target of the case up in the Bay Area.

Bonds was only one of many who were snared in the investigation of the now defunct business that distributed illegal steroids. Marion Jones, her coach Trevor Graham, cyclist Tammy Thomas and baseball players Jason Giambi and Gary Sheffield were among many who were asked to tell the truth in exchange for not being charged with a crime they might have committed for doing business with BALCO.

As we know, some of the athletes lied and have done or are still doing prison time for lying. The BALCO owners did their time in the pen as well. Jason Giambi told the truth and was vilified in the press and by the fan base of the Yankees but lived to see the boos turn to cheers as he dug himself out of the public relations mess. And it was the fear of a reaction like that to Giambi's admissions that had Bonds afraid, the same fear that gripped Marion Jones. She believed that if she could wriggle out of potential perjury charges her gold medals would remain in the trophy case and her place in Olympic history would be safe.

Bonds is the straggling loose end left in the BALCO case that is now more than five years old. We might think it doesn't matter any longer and that it has no relevance or serves no purpose but ask Marion Jones, Dana Stubblefield and others if they want to see Barry avoid his time at the whipping post after they faced the music.

Some who think Bonds' statements are no worse than those made by Roger Clemens and Rafael Palmeiro in front of Congress think the facts in their respective cases are similar. One quick distinction that makes a big difference is that Clemens and Palmeiro testified at a public hearing without immunity from prosecution. If they lied they'll face charges if what they said has the same significance to some federal prosecutor as the witnesses testimony in the BALCO matter.

A great deal of what determines if prosecutors want to literally make a federal case out of stupid statements made under oath is if they believe the lies hindered them from prosecuting the target of the investigation. In this case that was BALCO. They were bound and determined to get the goods on Victor Conte and his partners and those that stepped in between them would pay the price. There was no underlying criminal investigation during which Palmeiro and Clemens testified. In fact, Congress never asked Clemens to do so. He insisted on it as part of his attempts to clear his name. That didn't work out so well.

As for the amount of time the Bonds' case has taken to get to this juncture, well, the feds gave him every chance to recant what he said, cut a deal and see what he'd get. He has fought it every step of the way as his right. In the meantime they took guilty pleas or got guilty verdicts against every person that was charged in their case. It can take years to mount a case. Please see for reference the civil charges brought last week against Dallas Mavericks owner Mark Cuban for actions taken in 2004.

In that context, the Bonds matter is the last and most infamous of the BALCO related witness cases but hardly unlike the others that have been won each time by Bay Area federal prosecutors.