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August 11, 2006

Barry and the Law

A Guide to Bonds' Legal Situation

by Keith Scherer

Last year, Keith Scherer contributed a chapter to Will Carroll's award-winning book, The Juice: The Real Story of Baseball's Drug Problem. Keith has been a legal advisor to Baseball Prospectus on the legal issues surrounding the BALCO and Barry Bonds cases, and we asked him to do an update on his chapter as a spectator's guide.

Q: Will Bonds be indicted?

A: It’s almost certain that he will. The federal government doesn't move against someone until the outcome is more or less guaranteed. Before convening a grand jury, the prosecutors prepare an internal memo analyzing every aspect of the case, including potential objections and motions and credibility problems, and then has that memo vetted by every link in the chain of command. Weaknesses get fixed. In high profile cases even the brass in D.C. has to bless the memo before the case will go forward. This doesn't ensure a conviction, but it just about guarantees an indictment. It also ensures that a vindictive and uninformed prosecutor doesn’t embarrass the U.S. Attorney’s Office and Department of Justice.

Q: Why wasn't he indicted by the first grand jury?

A: He probably could have been but the prosecutors hadn't closed their investigation by the time the grand jury expired. There was some gloating when Bonds didn’t get indicted but it's very common for grand juries to expire without returning an indictment. This doesn’t mean the prosecutors failed, though. When it happens, it's not a surprise to the prosecutors, who have known well in advance that they wouldn't be able to wrap up their investigation by the end of the grand jury's term. They have been planning all along to present the case to a new grand jury.

Getting the new grand jury up to speed doesn’t take long. The prosecutors put the grand jurors in a room with all of the transcripts and exhibits they have collected so far. They invite the jurors to take weeks and go through all that evidence or, if they’d rather, they can just give the prosecutors 15 minutes to summarize it all for them. There are variations on how this plays out, but the grand jury inevitably takes the faster path. At best, the expiration of Bonds's grand jury was a neutral development. It could mean that the case has stalled out without getting where the prosecutors want it to be, but that’s highly unlikely. It could mean that the feds are developing new, more damaging evidence. For one thing, we know the prosecutors were still waiting to see Bonds's medical records. Or it could simply have been a matter of wanting to persuade Greg Anderson to testify by threatening him with 18 more months of jail time.