Monday, September 8, 2008

Buzz and Bonds

I was trying to get to this post on Friday, but things just crazy at the day job. I spent enough time thinking about it, however, that throwing it away seemed rather wasteful. Better late than never, right?

Buzz Bissinger feels bad for Barry Bonds' predicament, and thinks the prosecution of him for perjury has gotten out of hand. Jason at IIATMS thinks Buzz is full of it. Neither of them are necessarily wrong. Buzz throws out a lot of issues in his piece, conflating many, so let's take them one-by-one:
"I don't like Barry Bonds."
For what it's worth, I don't think Buzz is sandbagging on this point for purposes of making his argument seem more objective. I really believe that he doesn't like Barry Bonds.
But last week’s news trickling out of the endless investigation of Barry Bonds has caused me to feel something for him I never thought possible: sympathy. And beyond just sympathy, outrage over what has turned from a prosecution into a venomous persecution of someone who, no offense to the pastime purists, is just a baseball player. And I am beginning to think that federal authorities in charge of the pending criminal case against him for perjury have exactly the same attitude many sports fans do — we don’t like Barry Bonds, and since we don’t like him, let’s teach him a lesson he won’t forget. Let’s ruin him, which the federal government is fond of doing in all too many instances.
I am a pretty big critic of the way prosecutors -- particularly federal prosecutors -- have exercised their discretion in recent years. I think publicity has played a far bigger role in prosecutors' decision making than it should, and that that when a choice must be made between looking strong and doing the right thing, they will pick the show of strength at every turn.

What I haven't seen, however -- at least outside of the realm of the Alberto Gonzalez business, and even that was somewhat different -- is the intentional targeting of someone simply because the prosecutors don't like them. It just isn't in the makeup of a federal prosecutor to set out to ruin someone. Sure, they may ruin people along the way, but it's always because they're trying to do other stuff like get their names in the paper or please the administration or something. Sometimes they even ruin people because doing so is an unfortunate byproduct of trying to do some justice.
The charges themselves are questionable enough, given that Bonds, even if he knowingly took such drugs, was only doing what so many other major league players were doing in an atmosphere that encouraged such usage, given the appalling lack of internal enforcement by the league itself. If you’re going to indict Barry Bonds for perjury, then aren’t there also some charges on which to indict league commissioner Bud Selig, Major League Players Association head Donald Fehr, every team owner, every general manager, every manager and the legions of others who all hid like quivering cowards when it came to illegal drug use?
I don't think it takes a law degree to realize that the "everybody else was doin' it" defense is no defense at all, and I would have hoped that Bissinger would have realized it too. That said, I agree with Buzz's assessment that the charges are questionable. Not because of the environment in which they were brought, but because, in and of themselves, the questions and answers which form the basis of the alleged perjury are remarkably ambiguous and poorly-crafted. If you care deeply about this case and have about an hour to kill on the minutiae of testimony and perjury, back in March I went over all of the reasons why I think Bonds should get off based on my reading of the grand jury testimony.
But what is far more disturbing is the way in which the feds are now conducting the case, with a vindictiveness smacking of unseemly obsession. Last week, Duff Wilson and Michael Schmidt of The Times reported that federal authorities are considering criminal charges against the wife and mother-in-law of Bonds’ former trainer, Greg Anderson, in an effort to pressure him to testify against Bonds . . . Threatening family members is conduct worthy of the mafia, not the federal government, particularly in a case that is ultimately inconsequential beyond sensational headlines and another round of “I Hate Barry” frenzy.
I agree that this is reprehensible, but I wish Buzz was right when he said that this was behavior not worthy of the federal government. Regardless of the motive for bringing the case in the first place -- Buzz thinks it's spite, I think it's glory-seeking and the mindless execution of an out-of-control War on Drugs -- shaking down family members is par for the course when it comes to the feds. Hardly anyone's life can bear hyperscrutiny. If you're followed for a few miles, the cop will see you cross the center line or exceed the speed limit if only momentarily. If you're audited closely enough, the agent is going to find something amiss with your taxes. If your background is searched enough, he is going uncover some embarrassing event or association which can be exploited. Federal agents are experts in finding anyone's legal, moral, or ethical hiccups, and once found, they will be used. To be sure, I have never known of an agent illegally exploiting information to turn a witness or break a case. But something can be perfectly legal while still being imprudent or simply wrong.
In the report by the former Senator George Mitchell to Major League Baseball last December, 86 present and former players were named as having used steroids and other performance-enhancing drugs. But how many of them are currently being prosecuted? The answer as far as I know is zero. In fact some of those named, such as Andy Pettitte and Jason Giambi of the New York Yankees, are still playing. But the major difference is that Pettitte and Giambi (to some extent) are likeable fellows, whereas Bonds is downright loathsome.
This is the kind of thing that drives me crazy about Bissinger's writing. He comes up with an interesting, conventional wisdom challenging position -- Bonds is becoming a sympathetic figure and what's happening to him is a shame -- and then needlessly muddles it with wrongheaded stuff like this. As Jason pointed out, there is a huge difference between Pettitte and Giambi on the one hand and Bonds on the other. Pettitte and Giambi admitted steroid or HGH use when they were under oath, whereas Bonds did not. Again, I think Bonds stands a good chance of getting off because the actual questions on the record and the witnesses testifying against him are not the strongest in the world, but given the massive amounts of information out there pointing to Bonds' drug use, no one could reasonably expect that a prosecution wouldn't ensue when he sought to deny it. If Greg Anderson were testifying or of the grand jury transcript was anything other than a near-useless muddle, the case against Bonds would probably be open and shut. As of now he has a punchers' chance. Had he simply owned up to his steroid use at the time, however, he'd not be under any legal cloud at all.
Bonds did not use the league nearly as much as the league used him. As he made his record march in 2001, ballpark after ballpark was filled to capacity. Reporter after reporter followed his exploits. He was hailed as maybe the greatest player ever in the history of the game, until he became the pariah that he is today.
Very true, and the same goes for everyone else using PEDs. Which is why no one officially connected with Major League Baseball would dare say a thing back when Bonds was chasing Aaron. It was a situation everyone went into with eyes wide open, or maybe willfully closed, and that's why virtually 100% of the derision aimed at Bonds came from the media or retired players.
In fact, more than just pariah: it seems pretty clear that he has been blackballed by the league this year despite statistics last season that included 28 home runs, 132 walks and an on-base percentage of .480 in only 340 at-bats. In the stretch-run for the playoffs, there isn’t a team that can use him? Of course there is, but his conspicuous absence smacks of collusion by team owners regardless of denials by Commissioner Selig. The players’ union smells stink, and so do I.
But do you have a shred of evidence, Buzz? I am not as soft on claims of collusion as Jason is in his piece -- the owners colluded multiple times before regarding many players as opposed to just one -- but as I and many other have pointed out in the past, there are a lot of reasons to avoid Barry Bonds these days. In the face of those reasons, the burden falls on those shouting, or at least smelling collusion to tell us why they think it's happening. Has a single team source, either off the record or on, suggested that they were told to avoid Barry? Not that I know of, and if you don't have any evidence, your conspiracy theory goes nowhere.
Did Bonds lie to the grand jury about using performance-enhancing drugs? If so, he is hardly the first public figure to lie about something. A president named Bill Clinton lied about his affair with Monica Lewinsky. He got impeached, but he remained in office, and to this day is still one of the most beloved political figures in American life.
Oy. Sometimes you don't even want to respond to something like this lest you give it more respectability in its refutation than if you had simply let it die. Still, the lawyer in me cannot let this pass without noting that (a) perjury before a grand jury in a criminal proceeding is a way different kettle of fish than perjury in a deposition in a civil case; and (b) Clinton still lost his law license and had to pay a fine over his lying. That may not have mattered much to him given where he was then and has been since, but it's still a pretty stiff penalty for what he did. I've had dozens of people very obviously lie to me in the course of a deposition. Not a one of them has had anything bad happen to them. Some of them even went on to win the damn case.
It is also ridiculous to assume that Bonds would have done anything else but lie, even under oath. He is a professional athlete, not a role model, despite the fact that we continually insist on confusing the two, with our need to put on those rose-colored glasses. If he had taken steroids and told the truth, he would have been ruined. By not telling the truth, he would have been ruined. He was in a no-win situation.
Wait, didn't Buzz just cite two guys -- Pettitte and Giambi -- who were in Bonds' situation and found a way to win? If Bonds had simply admitted steroid use at the time it still would have been a monster story because he would have been among the first to come out of the PED closet. But that would have changed over time as more and more players were identified. He'd still be hated because, let's face it, he has always been hated, but it wouldn't be all that different than how it was before. He's a pariah now in far more profound ways than he would have been had he never been indicted.
But enough is enough. Leave Anderson alone. Leave Bonds alone. Let them deal privately with what they did or did not do . . . In the hierarchy of issues that are important in this country, steroid use in baseball has become a bottom feeder. And prosecuting someone because you don’t like him isn’t justice but the complete miscarriage of it.
I'd agree that Anderson should be left alone at this point, and I do think they are taking a bit of a heavy handed approach with Bonds and all of the other athletes that have been tripped up by BALCO. Maybe I'm just too soft when it comes to otherwise law-abiding people lying about their personal drug use, but rather than scorch the Earth for evidence and prosecute the heck out of this thing, a reasonable prosecutor would have tried to cut some deals with a heavy fine and community service components, preferably in the service of anti-drug programs aimed at kids. They still would have broken up the little drug ring they cared so much about and they still would have been able to crow about their role in cleaning up sports.

But even if I would have handled it differently, I can't say that what's happening to Bonds now is the result of some personal vendetta, and I'm struggling to see it as a miscarriage, as opposed to a misapplication, of justice.


rob said...

Hmmm let's see:

1) I don't like Barry Bonds.
2) I don't think perjury is an important crime.

That pretty much sums it up, right?

Jay said...

Craig, I think you just politely FJM'd Buzz. Well done.

DonK said...

As a taxpayer, I want the government to explain to me why it has spent well into seven figures to try to convict a professional athlete on a charge of perjury related to an "offense" that hurts no one -- and, since we have no quantitative evidence of what PEDs do or don't do, we can't even say how much anything he might have taken benefited his play.

This is an absurd abuse of power, and the Bush administration should be embarrassed, as should every government worker who's involved.

Stop pouring money down the drain. The only reason this is going on (and on, and on) is that someone doesn't like Barry Bonds. Whatever you think of Bonds, folks, you should be irate at this charade.

Jason @ IIATMS said...

Donk: I agree, it's a waste and we should be upset that the "due process" is wayyyyy overdue, but that doesn't mean we should just let a perjury case be dismissed due to cost/convenience.

Otherwise, every attorney would engage in stall tactics and lord knows they hate doing that.

Right, CC?

Who needs hourly billing! Gimme flat rate pricing!