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November 16, 2007

Prospectus Today

Barry Bonds is a Ham Sandwich

by Joe Sheehan

A grand jury, held open for nearly four years, handed down an indictment yesterday against Barry Bonds for perjury and obstruction. Bonds is accused of lying to a grand jury in the government's case against BALCO, specifically saying that he did not knowingly use steroids and that he did not take anything from trainer Greg Anderson before 2003. He is also charged with obstruction as a result of the alleged false testimony. When this news came down yesterday, it was treated as a major story, deserving of 48-point headlines and breathless commentary and Internet polls.

Without defending Barry Bonds, or getting deeper into the case, is this warranted? Do we know anything today that we didn't know a day earlier? An indictment is a step, but it is enough of a step for the kind of speculation and condemnation that we've seen over the past 18 hours?

Consider what an indictment is: an accusation of wrongdoing by the government against an individual. Well, if the government is now saying that it believe Barry Bonds lied to a grand jury, in doing so it now joins a majority of the public, almost the entire media industry, and a good chunk of the baseball world. That there's now an official act in place-the indictment-doesn't mean all that much. My understanding, and I am in no way a legal expert, is that getting an indictment is a fairly trivial act for a functioning authority. (The phrase I've seen is that any competent prosecutor can get a ham sandwich indicted. It's getting a conviction that's the challenge.)

So what's interesting here isn't that Barry Bonds was indicted. What's interesting is that it took so long to get an indictment, to the point of extending the grand jury more than once, and that the indictment fails to mention the most serious of the legal questions, the accusations of tax evasion. If it took so long to convince a grand jury to indict Bonds of, basically, lying, what are we looking at in terms of a trial, and how strong will the case be?

While watching various sporting events last night, I kept reading the news crawling across the bottom of my television, the ticker alerting me that each count of perjury carried the potential for five years in prison; the obstruction charge comes with a ten-year maximum penalty. What was lacking-like a player projection that only shows the upside-was an indication of the likelihood that we ever get to the point of sentencing. Again, I am not a lawyer, nor do I play one online. Perjury, however, is one of the most difficult things to prove, because it's not just about showing that the witness was wrong, but that they were willfully lying. Perhaps Barry Bonds did lie-you can't really throw a browser without hitting someone who will tell you that he did-but believing that enough to say so on Around the Horn and being able to prove it to a jury are two vastly different things. All we know today is that the government would be willing to go on Around the Horn.

The most interesting thing that may come out of this in trial is the government's evidence against Bonds. The indictment indicates that the test results on which it is basing its accusations of perjury are from internal BALCO records, and place the testing before MLB did any testing in 2003. Victor Conte, founder of BALCO, indicated in one report that those tests may not mean what the government believes them to mean.

In the shadows of this is the question of the results of the 2003 survey testing, agreed to by the MLBPA on the condition that the results be used only in the aggregate, and that the testing be anonymous. There's an ongoing question about whether the government actually has a list of those players-between five and seven percent of those tested-whose results turned up positive. Although not, apparently, an issue in this indictment, the possibility that those results, that list of names, will come out in the trial hangs over this case. If it did, it would be a blow to labor relations within the game, as protecting the anonymity of the survey-test results was a key concern of the players in the negotiations that led to the program.

These are issues that will come up during a trial. Today, all we really know is that the United States government was able to get a grand jury to sign on to the conclusions reached by so many people outside of their deliberations over the past four years.

Joe Sheehan is an author of Baseball Prospectus. 
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