Sunday, March 2, 2008

Bonds Before the Grand Jury

So I sat down yesterday and read the entire Barry Bonds grand jury testimony (what, you think I have a life?).

First observation: I can't believe that BALCO lawyer Troy Ellerman went to all that trouble -- and now is in jail for over two years -- to leak this to Lance Williams and Mark Fainaru-Wada. I mean, I suppose it seemed nice and explosive at the time of the leak, but this is pretty mundane testimony from a rather boring and unpleasant witness. Why on earth does one risk their livelihood and freedom over it? Is fame -- even the vicarious kind stemming from seeing your anonymous handiwork in some sportswriters' book -- worth it? God, I hope not.

Second, having read the entire testimony, I am way less impressed with the indictment (not that it's actually valid following Friday's ruling, but that's another story).

To understand why I think this indictment is weak, you have to understand one simple thing: this is not a case about whether Barry Bonds took steroids. He did. That he did is pretty painstakingly documented. Indeed, to the extent you hear someone talking about Barry Bonds as likely to be convicted because, yes, he did take steroids, feel free to ignore that person because they don't know what they're talking about. For purposes of this perjury case the fact of his actually taking steroids is irrelevant. This is a case about whether Barry Bonds knew he was taking steroids prior to December 4, 2003. Or, more to the point, a case about whether the government can prove that he knew he was taking steroids prior to December 4, 2003.

As to that: Bonds says multiple times that he had no idea he was taking steroids. Greg Anderson didn't tell him, and he didn't ask. He had no idea what his BALCO blood and urine tests said because no one told him and he didn't ask. You can choose to believe him on these points or not, but in order to convict Barry Bonds of perjury, the government cannot simply admit Game of Shadows into evidence or establish that the cream and the clear are steroids. Rather, they need someone to come in and testify about what Barry Bonds knew and when he knew it. Based on the indictment they went with, his knowledge is all that matters.

So, knowing what we now know, how strong does the indictment look? Not too strong in my mind. While there are multiple questions and answers for which Bonds has been charged, there are essentially three categories of perjury in the indictment. Let's look at those categories and see where things stand:

The "did you take steroids" or "did Anderson give you HGH" questions (Counts One and Three of the indictment).

I think these are all flawed and subject to vigorous attack by the defense. Early on in his testimony, Bonds says he didn't know what Greg Anderson was giving him and never asked. Once – and I think it's the key point of his testimony – he says he "has his suspicions" based on what he's hearing now, meaning that he now realizes he may very well have been unwittingly taking steroids. All of the simple "did you take steroids" questions, to which Bonds answered "no," -- and which have found their way into the indictment -- followed that exchange, and have to be read in light of it. Specifically, they have to be read "I did not knowingly take steroids," because to do otherwise ignores Bonds' earlier testimony about (a) not knowing; and (b) now having suspicions. That represents some pretty bad cherry picking in my mind, and effective defense counsel is going to have a pretty easy time demonstrating that to the jury.

The only way the prosecution wins on these questions is if Greg Anderson changes his mind and testifies that, yes, Barry Bonds knew exactly what he was taking, and that seems highly unlikely at the moment. It's possible that another person could testify to this, but they'd be in a way worse position to know and, frankly, I don't think such a person has been identified. If that doesn't happen and, instead, the government presents a case that goes "he said he didn't take steroids, but we just proved those substances were steroids!" they're going to lose, and in an embarrassing fashion. We know they were steroids. Barry knew as of the time of testimony that they were steroids. The question isn't whether they were steroids, but whether Bonds knew it at the time he took them.

A second problem with these questions can be seen in the question asked at page 81 (the first "did you take steroids"question). Bonds says no. Clear cut, right? Wrong. The question followed, and was entirely based on several pages of arcane BALCO documents that Bonds didn't write and said he had never seen before. Any reasonable person reading the question put to Bonds in full context reads it to mean "don't all of these pages of documents I just read to you establish that you took steroids?" as opposed to the simple "did you take steroids?"

I'm entirely confident, based on his answers up to that point and the tenor of the questioning, that Barry Bonds understood the question that way. He even followed up his "no" with "I've never seen these documents. I've never seen these papers." Bonds' answer -- for which he was charged with perjury -- clearly seems to be responding to the questioning U.S. Attorneys' characterization of the BALCO docs, about which Bonds admits he knows nothing. In light of this, the answer ("no") is both entirely understandable and entirely true.

The only way that answer is a blanket denial of ever taking steroids is if it's wrenched from its context as the prosecutors have wrenched it from its context in Count One of their horrendously flawed indictment. Bonds obviously believes he may have unwittingly taken steroids ("I have my suspicions"), and to use this out-of-context question to establish otherwise is patently disingenuous. Watch for Bonds' lawyers to make serious hay out of this at trial.

The "did Anderson ever give you anything to take in a syringe" questions (Count Two).

These seem cut and dry, and the testimony doesn't really help us here. Either Anderson gave him syringes or he didn't. Absent Anderson's cooperation it may be a trickier case, but in light of Bonds' testimony that Anderson always gave him stuff in a crowded clubhouse, I imagine any number of people could testify that they saw syringes being passed, in which case Bonds could be cooked on this count.

The bigger question I have about the syringes is relevance, both in terms of the case against BALCO -- they were busted for the substances themselves, not the method of delivery -- and as to why Barry Bonds would lie about it.

The timing questions (Count 4).

The government tries to nail Bonds down on him getting product from Anderson before late 2002-early 2003, which is when Bonds says it was. They ask about 2001 and early 2002. He says no. Then he says he can't recall. Then he even says "I could be wrong" about the late 2002-early 2003 dates, but that was his recollection. The indicted questions make it clear, however, that the government is going to try to present evidence of early 2002 (or earlier) use of Anderson product by Bonds.

But even if they do, I'm not sure how Bonds' answers can be considered perjury as opposed to poor memory. This is especially true in light of the "as far as I can recall" and "I could be wrong" stuff, not to mention his overall lack of confidence about the dates to begin with. At the very least the government should have to present some evidence as to why these dates make a difference – present some motive or evidence as to why Bonds might have been lying here – in order to establish that this was a knowing lie as opposed to bad memory. If they don't, they lose.

So that's the indictment. In light of Friday's ruling it will be redrafted, but that's pretty much it. While I think Bonds could be in trouble with syringes, none of the other categories of questions present cut and dry instances of provable lies based on the currently known evidentiary record. Absent some bombshell testimony from Greg Anderson or a similarly situated person, this prosecution goes nowhere. As I said before, however, Anderson has said that he's not testifying, and given how much time he's voluntarily spent in jail to avoid doing so to date, I see no reason why he'd change his mind now. Who else is there? Specifically, who else is there that isn't a horribly compromised witness? That's the only question that matters.

By now most sane people have stopped reading. If you haven't it means you actually care about this minutiae, so I'll keep going with some flyspecking of the testimony itself:

Page 14:

Bonds is asked what athletic achievement he is most proud of. He says he is most proud of being drafted by the Pirates in 1985. The prosecutor immediately follows up by asking Bonds to confirm that he broke the single season home run record in 2001. It seems that the only reason he asked that question was because he was expecting Bonds to name that as his proudest professional achievement. All inquisitors enter such hearings with a plan, and you get the sense that Bonds' inquisitor had planned to use the 73 home runs as some kind of hook. Like he was trying to guilt Bond by conflating his “proudest moment” with steroids from the get-go, hoping that guilt or shame or something would break Bonds and open up the informational flood gates. Didn't work. Indeed, Bonds seemed particularly soured on everything baseball-related since 1985.

Pages 30-32:

Bonds has been describing the stuff Greg Anderson game him at the ballpark during home stands (i.e. the cream and the clear). The U.S. Attorneys ask him multiple times if Anderson told him what it was or if he otherwise knew what it was. Bonds goes out of his way to say words to the effect of “we were at the ballpark. There are reporters everywhere. There was nothing to hide.” Given the context -- no one yet has characterized those things as steroids, and they are simply asking Bonds for background -- the whole exchange seems defensive. Bonds was certainly coached by his lawyers to simply answer questions without editorializing and time and again he fails to do so.

Page 36:

When talking about the clear, Bonds indicates that Anderson gave it to him in response to Bonds needing pain relief. Bonds says “in the early part of my baseball career – you could get certain pills that you could take. And I said ‘I don’t want to be addicted to anything. I don’t want to be addicted to pain pills and stuff like this to take pain away.’”

The early part of Bonds’ career – especially in Pittsburgh – was a time when cocaine and God knows what else flowed freely in baseball. If you believe Bonds here, you have to assume that pain pills – probably strong ones – were common as well. We talk an awful lot about how PEDs have enhanced offensive totals over the past 15 years or so, but maybe that enhancement looks greater than it really was. Maybe performance was significantly depressed in the 70s and 80s by barbiturates and coke and whatever the hell else players were taking.

Page 40:

Strange exchange here. Up to now, Bonds has said on several occasions that he didn’t think the stuff Anderson was giving him helped him all that much. Then comes this:

Q: And what were the results or effects of this lotion? Did you find it helpful to you?

A: I thought it was – oops.

Q: I’m sorry.

A: Oops. I – I almost said something.

I thought it was really bad. I didn’t think it did anything to be honest with you. I didn’t think it did anything.

I'm about 90% sure that Bonds' stopping himself and saying "oops" was because he almost dropped an s-bomb or something, but if you're just reading it cold and out of context, it looks like he's saying "oops, I almost said these things did something, and I'm changing my answer."

Page 42:

Reading the testimony, you get the sense that Bonds, while not quite the idiot Roger Clemens seems to be, isn’t exactly detail oriented. That the combination of his obvious stubbornness and lack of mental rigor causes him to lose track or not pay close attention to the questions he’s being asked. As a lawyer, there are ways to deal with witnesses like this. You build with small questions to get to a larger point. You use the witness’ own words whenever possible. Above all else, you don’t just smack them with some new term, especially technical terms, out of the blue, because it will bring things to a crashing halt and probably close off that subject for questioning for the rest of your time with the witness.

This, it seems, is a lesson the US Attorneys questioning Bonds were never taught. After a line of questioning about how often Bonds had been to BALCO’s offices, they whip this one out:

Q: Did Greg ever talk to you about something called Norbolothone?

A: Who?

Nice try. That kind of thing happens multiple times.

Page 43:

The famous “don’t come to my house talking baseball” digression. Bonds offers it – and a few paragraphs more about not knowing what’s in his wife’s purse and “getting into other people’s business” – in response to a simple question: “Did Greg ever give you anything that required a syringe to inject yourself with.” It’s a total non-sequitur on Bonds’ part, and seems distinctly like someone vamping while trying to figure out how to answer a question he doesn’t want to answer.

The question is why he’s doing this? To that point he’s done a pretty convincing job of playing dumb. Even if Bonds himself knows that he’s being injected with illegal North Korean nuclear secrets, he’s probably Scot free if he says “yes,” and when asked what he was injected with says “I don’t know.” Instead he draws glowing neon attention to himself with his non-answer, and it prompts follow up questions about injections, many of which can be found in the indictment.

What is Bonds doing? To me the answer appears obvious: he’s trying to protect Greg Anderson. No other explanation makes sense. Simply saying he was injected with something does nothing to put him in any worse a light than the stuff he’s already says. The issue of syringes are ultimately inconsequential, but as I note above, the thing he's probably most likely to be convicted of lying about at trial. How utterly pathetic.

Pages 47-49:

Bonds is asked a series of yes-no questions, and insists on answering them with long, drawn out answers. He’s continuing to look evasive and cause trouble for himself. As I said above, I think the actual substance of the Q&A doesn't do much for the government's chances at trial, but you can certainly see by reading this why they charged him.

Pages 61-62:

They ask him whether his training with Anderson is separate or whether it is overseen by the Giants. Rather than simply answer the question, he goes off on an explanatory jag which seems aimed at defending his working out with Anderson. Again, he seems to be trying to protect Anderson. To justify his role with him and the team. I get the sense that Bonds had no sense that anyone was after him, but rather, they were after Anderson, both legally and after his reputation, and that he’s trying his hardest to make Anderson out to be a good guy. First rule of testimony: don't be a hero. If Bonds had heeded that, he may not be indicted -- and may be in someone's training camp -- today.

Page 62-63:

They ask him about other players training with him. Bonds: “Eric Young was one. He lasted about two weeks and went home.” Ouch. What about Benito Santiago? Bonds: “No way. There’s no way. Benito ain’t training that hard. They’re no way. I’m sorry, I love him . . .” Love it.

Pages 67-68:

More detailed questioning regarding documents Bonds says at the outset he’s never seen before. In fact, the majority of the questions asked Bonds are about documents he has no first hand information about and likely never saw. Other than the "gotcha" game I mentioned above, there seems to be no reason why the prosecutors should be asking Bonds about these things.

Pages 72-73:

They're asking Bonds how he paid Anderson. It breaks out to roughly $15K a year, which Bonds says he pays in cash. The investigators try to make something out of that – “that’s a lot of cash to have on hand, isn’t it . .” Bonds’ response: “I make $17 million.” Pretty funny, but I find the line of questioning less funny. There’s a grand jury sitting there, and the questions are clearly calculated to inject a tone of nefariousness. As if the simple act of paying someone in cash is evidence of wrongdoing. Later, when the grand jury members get a chance to ask questions themselves, they're almost all about the money he paid Anderson, including one who asks whether Bonds planned to build Anderson a mansion. It has pretty much nothin' to do with nothin' except to get the grand jury suspicious of Bonds. To that end, mission accomplished.

Page 85:

Earlier Bonds said that nothing Anderson gave him helped him all that much. He admits here that in an ad for BALCO that ran in Muscle & Fitness magazine he said that BALCO helped him tremendously. He admits, however, that he was lying, or at the very least exaggerating, as a favor to Victor Conte and to make the ad better. Barry Bonds may yet skate on the perjury, but maybe he has a future as a defendant in a false advertising lawsuit!

There are about 70 more pages, but they're pretty much all variations on the above themes. Overall Barry seems evasive and defensive, but like I said, not so much that there's perjury on the face of his testimony. If he's going to get got, the government has to put someone on the stand to call him a liar.

And that's pretty much that. Given the indictment being temporarily thrown out on Friday, it's going to be a long time before Bonds gets to trial. Given the nature of the questioning and charging, he may never be convicted. Given the opinion most of the public has about Bonds, it may never matter one way or the other.

8 comments:

iwillbeginagain said...

Thanks for taking the time to go through this. I read your whole post and the whole pdf!

Gotta believe the date subject will be stripped from the government rewrite. The dates were a jumble during questioning and Bonds answered 2000 once when he meant 2002 because of the numbers being thrown around. The prosecutors couldn't get the dates right in a filing for the court.

Agree the oops was to avoid use of the s-bomb. Later, Bonds said something to the effect that he couldn't use some term in court. It was important to him not to curse.

It was important to him not to give any information that could hurt Anderson. Almost the entire subject matter on these perhaps false statements about Anderson and what Anderson did could only be contradicted by Anderson. Without Anderson's testimony then, the entire indictment isn't about getting a conviction - it's some sort of political effort.

Also, aren't all "no" answers in effect "not that I know of" because every answer and every witness is subject to limits of memory and awareness? A false answer can be given unintentionally and that's not perjury.

Roger Moore said...

There's one other question I have about the Feds' case. My layman's understanding is that perjury involves more than just lying under oath; it involves making lies that are material to the case. If that's correct, it seems like a substantial additional hurdle. After all, the Grand Jury did hand down an indictment, and Anderson wound up spending three months in jail. How much of a difference would it have made if Bonds had admitted to getting steroids from Anderson?

Anonymous said...

My guess is materiality isn't going to be discussed until there's a tight indictment. Bold prediction is by the time the defense gets through with that, the government is going to be left with Kim Bell and Steve Hoskins and be forced to voluntarily dismiss to save embarassment at trial. Though, if they don't, they can take the perverse satisfaction in getting Greg Anderson more time in jail through a criminal contempt charge.

Inre Bonds himself, whether he tested positive or admittedly used steroids in 2000/2001 or even 2003 should have as much relevance to his ability to play baseball this season as whether Shyster got a little extra help on an English paper in undergraduate school has on his ability to practice law or write on the internet.

David Nieporent said...

Roger,

"Material" doesn't mean "important." It means "capable of influencing the tribunal on the issue before it." Otherwise nobody could ever be convicted of perjury in a case where there was lots of other evidence. You don't evaluate it in light of whether it actually did influence the outcome.

David Nieporent said...

Good post, Craig, with one comment: in a couple of places you say that Bonds could have avoided indictment if he weren't (seemingly) trying to protect Anderson. I don't believe it. We think we know from external evidence that they've been after Bonds from the beginning, and that seems to come through in the transcript as well.

For instance, if this questioning were about Anderson/Conte, what was the point of having him go line-by-line through documents that Bonds said from the beginning he hadn't seen and knew nothing about and didn't understand the codes?

IMO, unless Bonds admitted using steroids, he was eventually going to be charged with perjury.


And I agree with anonymous; the evidence against Bonds is Bell/Hoskins/Anderson, and Anderson ain't talking. (I guess it's possible Conte changes his story, but he has consistently denied having anything to do with Bonds, even after pleading guilty and even after being willing to give up other clients like Marion Jones.) And from what has been publicly reported, Bell doesn't have direct firsthand knowledge of use; the most she can do is say that Bonds told her he used. (And it's not even clear, even if she were deemed credible, that she'd be talking about the same time period as the questioners before the grand jury were.)

Tangotiger said...

Craig,

A general question about perjury. Waxman in his letter to the Justice Department said something to the effect that Congress couldn't have witness lying to it, as it would hamper investigations, or some such.

But, in the case of Clemens, there was really no investigation. It was more like "hey, Senator Mitchell wrote a report... we're not going to do anything with it, we won't make policy from it, we won't try to charge someone with criminal activity, but we just want to know if it's true".

If Clemens lied, then who cares? What Congress did was more like a fishing expedition.

With Bonds, it's different. They were investigating criminal activity at BALCO, and lying about your testimony may impact pursuing action against BALCO. And therefore, in reprisal, you get charged for perjury.

Tell me why I'm wrong.

Tom

Shyster said...

Tom -- the answer lies in the fact that Congress can pretty much do whatever it wants and call it an investigation. That's not a cynical take on my part -- Congress' powers are simply so wide-ranging that they can have a hearing about almost anything they'd like. If challenged, they simply can say "we may legislate about this one day," and of course, they can legislate about almost anything they want.

So while you know and I know that it was merely a fishing expedition, technically speaking it doesn't matter. For legal purposes, Congress' "investigation" is just as sancrosanct as a grand jury investigation.

To be fair, though, Clemens' attorneys should have told him that no matter how much of a kangaroo court it seemed to be, it was very real for all practical purposes.

Anonymous said...

Judge Illston did not throw out the indictment of Tammy Thomas today on grounds of materiality; the way I read the AP story she was saying that the determination was up to the jury. She also ruled Thomas' steroid tests (done by the testing authority for the Olmpic team) admissible. They had recovered Thomas' actual samples from 2001 and 2002 for retesting.