Diamond Justice: December 3, 2007

The Bete Noir of Baseball - Will Barry Bonds’s BALCO Biceps Land Him in the Hoosegow?

Sam Abady

This week, the Baseball Library begins a series about the Barry Bonds case with our resident legal eagle, Sam Abady. Our editor-in-chief, Richard Lally, will play the of interrogator and pose a series of questions to Mr. Abady as the series progresses. It is our hope to separate the substance from the speculation, the genuine analysis from the wishful thinking. Here is Mr. Abady’s background piece and our first Q & A:

Background

In 1986, Barry Bonds broke into the Majors at age twenty-one with the Pittsburgh Pirates. He was listed at 5-foot-11 and 185 pounds. He hit sixteen home runs and drove in forty-eight RBIs in 113 games. In 2001, Bonds, now in a Giants uniform, was listed at 6-foot-2 and 228 pounds. He hit a season-record seventy-three home runs and won his fourth National League MVP award, also a new record, and set season records for total walks (177) and slugging percentage (.863). On August 7th of this year, Bonds broke Hank Aaron's home-run record at AT&T Park with career smash No. 756.

Armchair experts insist the growth in Bonds’s weight proves he was juicing. In fact, that he continued to grow taller into his twenties also easily explains his increased pounds and muscle mass, augmented after he took up aggressive weight training in 1998.

Bonds was one of over thirty athletes subpoenaed to testify before a San Francisco federal grand jury probing the Bay Area Laboratory Co-Operative (BALCO), a Burlingame nutritional laboratory owned by Victor Conte and charged with distributing designer steroids to stars of baseball, football, and track and field. Bonds appeared in 2003 and was given immunity from prosecution in exchange for his truthful testimony.

He denied taking steroids. Instead, he maintained his personal trainer, Greg Anderson, gave him two topical applications, the “cream” and the “clear” which he understood were flaxseed oil and an arthritis balm. If they contained steroids, Bonds said, he had no knowledge of it.

Grand jury proceedings are supposed to be secret. It is a crime to reveal anything about them. Yet, in Game of Shadows published on March 23, 2006, San Francisco Chronicle reporters, Mark Fainaru-Wada and Lance Williams, obtained affidavits by BALCO investigators and extensive transcripts of the grand jury proceedings from Troy Ellerman, Conte’s attorney. Ellerman later pled guilty to leaking the materials and was sentenced to two years in prison and a $250,000 fine. Fainaru-Wada and Williams concluded that Bonds took many banned, performance-enhancing drugs. Specifically, they claim the grand jury evidence shows he took:

• Stanozolol, sold commercially as “Winstrol,” the same drug which disqualified Ben Johnson after winning the 100 meter sprint at the 1988 Summer Olympics;

• the “cream and the “clear," two steroids designed by BALCO to evade detection by current doping methods;

• human growth hormone – allegedly sold on the black market by cancer patients for whom it had been prescribed;

• insulin;

• testosterone decanoate, a steroid nicknamed "Mexican beans" or "Red beans;’

• trenbolone, a livestock steroid typically used to beef up cattle;

• Deca-Durabolin, a common body-builder’s steroid once used by California Governor, Arnold Schwartzenegger;

• Norbolethone, a steroid developed in the 1960s for the meat industry but never marketed due to safety concerns; and

• Clomid, a fertility drug used to mask the effects of steroid use.

However, Game of Shadows is based entirely on the unchallenged evidence presented by the government to the grand jury. A grand jury proceeding is a one-horse circus. Only the prosecutor is present, and he both presents the evidence as the government’s counsel and acts as judge instructing the grand jury on the law. For this reason, former New York State Chief Judge, Sol Wachtler, in a page 3 Daily News interview on January 31, 1985, with reporter, Marcia Kramer, famously said that any prosecutor worth his salt “could indict a ham sandwich.” Proof at trial is altogether something different.

Two years ago, Conte, Anderson, and three others pled guilty in the BALCO case. Then U.S. Attorney Kevin Ryan turned his sights on Bonds. Ryan was one of eight U.S. Attorneys summarily sacked by former Attorney General, Alberto Gonzales creating a scandal that resulted in Gonzales’s resignation on September 17th. Ryan’s successor, Acting U.S. Attorney Scott Schools, indicted Bonds on four counts of perjury and one count of obstruction of justice. Bonds is charged with lying under oath when he denied (i) he ever knowingly used steroids, testosterone, and human growth hormone; and (ii) that Greg Anderson injected him with banned drugs.

In October, sprint champion and sweetheart of the 2000 Sydney Olympic Games, Marion Jones, pled guilty to lying to the feds when she insisted she never used BALCO drugs. Her coach, Trevor Graham, and Tammy Thomas, an Olympic bicycle racer, await trial in San Francisco on perjury charges based on similar denials they made before the BALCO grand jury.

Michael Rains, the former cop turned feisty defense lawyer, has pilloried federal investigators and prosecutors in the press for unethical conduct in their witch hunt to get Bonds. He loudly declaimed the government has no case, and vows to vindicate Bonds at trial.

While the sports press and public have already convicted Bonds of steroid use, in fact, convicting him of perjury and obstruction of justice for denying steroid use will not necessarily be easy.

Meanwhile, Bonds has not been quiet about the allegations against him. "Let them investigate. Let them. They've been doing it this long," he said of the government’s grand jury probe before his indictment. On August 25, 2001, Bonds told sports reporters in New York: "You could test me right now and solve that problem real quick. You still have to hit that baseball. You still need hand-eye coordination. I think it's irrelevant." He had this exchange on April 5, 2002, at Pac Bell Park:

Bob Costas: "For the record, have you ever used steroids?"

Bonds: "No."

Costas: "Would you ever consider using them under any circumstances?"

Bonds: "No. I don't have to. I mean, I'm a good enough ballplayer as it is. I don't need to be any better. I can't get any better at this age."

He was interviewed on June 13, 2002, for HBO's "On the Record" show and said: "My cap has been 71/2 forever. I don't need to take anything illegal. Why do I need to cheat? I'm already good."

If convicted, Bonds faces up to thirty months in prison. His insistent denials of steroid use and his lawyer’s thumb-in-your eye challenge to the government will be to Bond’s benefit if he is acquitted, but hurt him on sentencing if he is convicted.

Sam Abady and Richard Lally Address the Bonds FAQ:

Richard Lally: It took nearly four years for the government to indict Barry Bonds on charges of perjury and obstruction of justice. Does this indicate the prosecutors have acquired new evidence they didn't have in the past?

Sam Abady: Not new evidence, but possibly, new witnesses. Early in the investigation, the government seized a treasure trove of allegedly incriminating documents, including doping calendars and payment lists it claims were written by Anderson for Bonds, and results of tests allegedly arranged by Conte to monitor Bonds’s steroid blood levels. Detroit designated hitter, Gary Sheffield, and Yankees first baseman, Jason Giambi, testified that Anderson created such documents for them, and they met Anderson through Bonds. The test results were in folders bearing Bond’s initials.

So I don’t think the government has obtained any new smoking gun evidence. Rather, after the indictment, legal experts speculate that Giambi, Sheffield, and former Giants catcher, Benito Santiago, all of whom admitted ties to BALCO, will be subpoenaed as prosecution witnesses at trial, and possibly, former Giants Armando Rios and Bobby Estalella, and Giambi's brother, Jeremy, a former Oakland Athletic. They, too, testified under grants of immunity before the BALCO grand jury.

Giambi and Sheffield supposedly told the grand jury they obtained the “cream” and the “clear” from Anderson, and Santiago supposedly testified he received injectable Winstrol and human growth hormone from Anderson.

In statements to the media, Sheffield said: "I asked Barry, you know, about this guy Greg Anderson. And he goes, you know, 'Don't ask any questions. Just trust me.'... Nothing was between me and Greg. Barry pretty much controlled everything." Likewise, Giambi said Anderson "didn't even talk about who he was dealing with or what Barry was taking. ... You know, I assumed because he's Barry's trainer - you know, Barry - but he never said one time, 'This is what Barry's taking, this is what Barry's doing.' " Santiago said Anderson "told me it [i.e., the “clear”] was a supplement for play[ing] the game, and basically, you know, you put it under the tongue."

Chief government witnesses will be IRS agent Jeff Novitzky, the lead BALCO investigator and former San Jose State basketball player, and experts on the science and detection of banned drugs.

Notably, Conte never testified about BALCO. In television interviews, he admitted giving steroids to Jones and other Olympians, but has steadfastly denied giving them to Bonds. Anderson refused to testify to the grand jury during the Bonds investigation, and spent more than a year in prison on a contempt citation. It seems unlikely he will crack and turn on Bonds now.

Kimberly Bell, Bond’s former girlfriend now spread all over Playboy, told the grand jury that Bonds confided in her seven years ago he was using steroids. She expanded on this to Playboy and now claims she saw him inject himself with steroids, and suffered from his “roid rage” when he reneged on a promise to move from San Francisco to Scottsdale, Arizona, in 2001, and give her $207,000 for the down payment on a house. Instead, he gave her only $80,000 and then left her. She is the kind of witness defense lawyers hope the government calls to prove its case.

On deck: More on Barry Bonds in the dock later this week.