Diamond Justice: December 11, 2007
Roids, Revenge and Reasonable Doubt: The United States v. Barry Lamar Bonds – Part III
This week, the Baseball Library continues our series about the Barry Bonds case with our resident legal eagle, Sam Abady. Our editor-in-chief, Richard Lally, resumes the role of interrogator to pose questions to Mr. Abady concerning the primary and ancillary issues of the case. It is our hope to separate the substance from the speculation, the genuine analysis from the wishful thinking. Here is Part 3:
Richard Lally: Can you take our readers through the processes and history leading up to the perjury indictment against Barry Bonds that the grand jury handed down on November 15, 2007?
Sam Abady: It can be summarized in four stages:
Athletes Subpoenaed to Testify Before the BALCO Grand Jury
After the September 3, 2003, raid on BALCO, during October and November, several sports federations announced that British sprinter, Dwain Chambers, shot putter, Kevin Toth, middle distance runner, Regina Jacobs, and hammer throwers, John McEwen and Melissa Price, had taken THG. As a result, these track and field stars were subpoenaed to testify before the BALCO grand jury, as were other athletes whose names surfaced in the investigation, such as Olympians Marion Jones, Chryste Gaines and Tim Montgomery; football players, Bill Romanowski and Barret Robbins; swimmer Amy Van Dyken; boxer Shane Mosley, and baseball men, Jason Giambi, Gary Sheffield, Benito Santiago, Armando Rios, Bobby Estalella, Jeremy Giambi and Bonds.
Bonds testified on December 4, 2003. He admitted using “the clear,” i.e., THG, taken topically and orally, and “the cream,” a topical testosterone concoction, but denied knowing that they were steroids. Hence, the issue is not whether Bonds ever took steroids – like the Giambi brothers, Sheffield and others, he admitted that he did. Rather, the issue is whether he did so knowingly and deliberately.
The Attorney General Grandstands the Case – Athletes Begin to Fall
There are ninety-three United States Attorneys stationed throughout the country. Usually, they announce high profile indictments in their respective districts. San Francisco U.S. Attorney, Kevin Ryan, set the BALCO case in motion. However, because BALCO was tied to so many famous athletes, and Congress had scheduled hearings about steroids in baseball, on February 12, 2004, it was not Ryan but instead, Attorney General, John Ashcroft, who announced the massive indictment against Conte, Anderson, Valente and Korchemny for conspiracy to possess and distribute anabolic steroids and money laundering. They faced a maximum of thirty years in prison.
Three months later, on May 19, 2004, runner Kelli White accepted a two-year ban for using undetectable steroids, and eventually, was stripped of her world titles in the 100 and 200 meters based on evidence from the BALCO investigation.
On September 14, 2004, the NFL fined Oakland Raiders, Chris Cooper, Barret Robbins and Dana Stubblefield three game checks each after they tested positive for THG, and announced that BALCO booster, Bill Romanowski, who also tested positive, had retired.
In dramatic contrast, ten days later, Bonds was given an unannounced, random steroid test administered under baseball's new collective bargaining agreement. "I'm glad this is finally happening," he told MLB.com. "They'll get the results and it will clear my name.” Sure enough, he passed the test. Bonds led the National League in batting average, slugging and on-base percentage that year, and went on to win a record seventh league MVP award.
Cynics will argue that Bonds bulked up during the three year period before the BALCO investigation began, and was alerted to stop taking steroids once the investigation became public, making it predictable that testing him over a year later would reveal nothing. This argument is challenged by a vital, physiological fact: steroids do not permanently increase muscle mass. To the contrary, an athlete must keep taking them, lest muscles bulked up by steroids atrophy. And Bonds is reputedly the most disciplined and hard working weight lifter in baseball, and has maintained his weight.
On October 11, 2004, Gary Sheffield told Sports Illustrated that Bonds had introduced him to BALCO; Conte had given him "the cream" for a scar on his right knee; and once he discovered it was a steroid, he cut his personal ties with Bonds. This was a successful public relations strategy, as the Yankees refused to punish Sheffield for his admitted steroid use.
Then, in December, Conte appeared on ABC’s 20/20 and gave an interview to ESPN magazine describing how he got into the vitamin and mineral supplements business which evolved into the steroids business. He named various athletes who had received BALCO steroids – but not Bonds.
On February 14, 2005, Jose Canseco published his explosive book, Juiced: Wild Times, Rampant 'Roids, Smash Hits & How Baseball Got Big in which he defended steroid use, claimed he personally injected Mark McGwire and introduced steroids to Juan Gonzalez, Rafael Palmiero, Ivan Rodriguez, Dave Martinez, Tony Saunders and Wilson Alvarez. Canseco had no personal dealings with Bonds, but speculated his weight gain of forty-five pounds after he became a Giant was due to steroids.
On March 17, 2005, McGwire, Canseco, Curt Schilling, Sammy Sosa and Rafael Palmiero appeared together before the House Government Reform Committee on Steroids in Baseball, and Frank Thomas testified via satellite. McGwire painfully and awkwardly evaded discussion of his use of “andro” or steroids, and Palmiero, talking a page out of Bill Clinton’s “I did not have sex with that woman” defense, shook his finger at the congressman and fervently insisted he had never taken steroids. He was suspended four and a half months later on August 1, 2005, after he tested positive. He blamed this on a vitamin B-12 shot.
For nearly a year, the San Francisco Chronicle had published extracts from the illegally leaked grand jury evidence and speculation about Bonds and steroids abounded the world over. The sports punditocracy hated Bonds for his ego and prickliness with the media, and convicted him of deliberate steroid use. In a recent episode of “Costas Now,” guest Charles Barkley said of Bonds and the perjury charges “we don’t know he’s not telling the truth,” to which an incredulous Costas replied: “What planet are you living on?”
Congress conspicuously did not subpoena Bonds or Giambi due to their involvement with the ongoing BALCO case.
The BALCO Case Collapses – Defendants Refuse to Roll on Bonds
Four months later, on July 15, 2005, the case collapsed. The government dismissed forty of the forty-two counts of steroid distribution and money laundering against Conte and Anderson, who pled guilty to only two counts and Valente to one. On October 18th that year, Conte was sentenced to four months in prison and four months home confinement, while Anderson got threes months in the can and three months at home. Valente was sentenced to straight probation for one year, and on February 24, 2006, Korchemny, likewise got probation for a year.
Arnold had been separately indicted on the same charges. On April 28, 2006, he pled guilty to only one count of conspiring with Conte to distribute steroids, and on August 4, 2006, received the same three-month prison/three-month home confinement sentence as Anderson. He admitted that, in addition to supplying BALCO with THG and norbolethone, he also made a third steroid for BALCO, desoxymethyltestosterone or DMT.
The case that began with a bang, the one that promised to clean up doping in all sports, ended in a whimper.
Critically, in none of the plea deals did any of the BALCO defendants agree to testify against Bonds. To make matters worse for the government, on March 16, 2006, two weeks before he was released from prison, Conte issued an emphatic public statement to USA Today hat he "never gave" steroids to Bonds, insisting "My relationship with Barry Bonds was 100% about his nutrition.” Even more importantly, Conte denied the statements attributed to him in Novitsky’s memo about the BALCO raid.
On July 5, 2006, Anderson was found in contempt of court for refusing to testify before the grand jury investigating Bonds for perjury, and was released just hours after Bonds was indicted on November 15, 2007. According to Paula Canny, a friend who accompanied Anderson out of jail, he was "never, ever going to talk. Never" and was "in for the long haul," meaning that, if subpoenaed again, he’d return to prison rather than testify against Bonds at trial. Anderson’s attorney later said essentially the same thing.
The Government Changes Tack - Perjury
Bonds’s attorney, Michael Rains, once held a press conference outside the federal building in San Francisco and railed against the government for its "persecution" of Bonds. "They don't even have enough to indict a ham sandwich," he declared, "let alone Barry Bonds."
From everything available in the public record so far, it is not at all clear the government has iron-clad evidence that Bonds ever knowingly took steroids. Nonetheless, on November 15, 2007, a San Francisco grand jury returned a “true bill” of indictment entitled United States v. Barry Lamar Bonds for violating two provisions of Title 18, known as the federal criminal code: (i) § 1623(a) for perjury; and (ii) § 1503 for obstruction of justice.
To prove that Bonds lied to the BALCO grand jury, the government must convince his trial jurors he knowingly took illegal steroids given to him by Anderson and supplied by BALCO. In the absence of medical evidence or credible eye witness testimony, this will not be so easy. BALCO file folders labeled “BB,” the absence of testimony from Anderson, Conte and Valente, plus compromised testimony from a disgruntled ex-girlfriend and ex-manager may leave much room for reasonable doubt.
The overarching issue is this: will a San Francisco jury regard Bonds as a hometown baseball hero entitled to a genuine presumption of innocence, or a deceitful, self-involved, egocentric sports millionaire and prima donna deserving no sympathy, as many in the media have portrayed him?
In our next installment, Mr. Abady deconstructs the indictment, and discusses the government’s burden to prove all the elements of perjury and obstruction of justice.