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January 29, 2008

Stupid Lawyer Tricks

Combing the Headlines

by Derek Jacques

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Barry Bonds Moves to Dismiss Indictment

You might have read that the all-time home run leader filed a motion last week before the federal court in the Northern District of California, asking that the perjury and obstruction of justice charges against him be dismissed based on the "unconstitutional vagueness" of the indictment. This story's a little confusing, since it looks like it should either be considered a much bigger deal than it is, or ignored completely.

After all, a motion to dismiss makes it sound like Bonds is going to get the charges against him dropped, and get away scot-free. That's unlikely-motions to dismiss are standard in criminal cases, because there's nothing that guys in jail like to do so much as sue their former attorneys for malpractice. This fact encourages defense attorneys to pursue any plausible grounds for dismissal, as a CYA measure (short for "cover your [Winstrol injection site]")-failure to make a motion to dismiss when there are solid grounds to do so opens the door to malpractice suits and insufficiency of counsel claims. These motions are often hastily assembled and are usually denied by the courts just as quickly.

On the other hand, we can't simply assume that Bonds' motion is an empty gesture. While it m probably won't result in Bonds walking away from the court a free man, a motion to dismiss can serve a valuable strategic purpose by forcing prosecutors to revise the charges that Bonds is facing. It's strange to invoke the concept of "vagueness" when most of the 19 untruthful responses Bonds allegedly gave were essentially variations on the words "yes" or "no," but perjury indictments require a great level of specificity to define exactly what the defendant is accused of lying about. This means that not only do the alleged untruthful statements have to be unambiguous, so do the questions to which the defendant was responding.

Take, for example, the following allegedly false statement from the Bonds indictment:

Q: All right. Did Greg ever talk to you or give you anything called human growth hormone?
A: No.

That's two questions the prosecutor was asking-did you talk about HGH and did you receive HGH-and one answer given by Bonds. So what's the lie: no, they didn't talk about HGH, or no, he didn't receive HGH? The Court could agree that charges such as this one are vague, reducing the work Bonds' defense has to do. A finding against the government could also send a message to the jury pool-fair or not-that Bonds is being overcharged and somehow "picked on" by the government.

Appeals Court Allows Feds to Use 2003 Drug Tests

In the first steroid testing deal arranged between the owners and the MLBPA in 2002, the initial round of PED testing was done on an anonymous survey basis, with a regular drug-testing regime to follow only if a certain threshold of players failed their tests. Somewhere between five and seven percent of all major leaguers failed that initial round of testing, triggering regular PED tests for all major leaguers going forward.

The individual results of this initial survey testing were supposed to be unimportant, and the test results and materials were supposed to be destroyed after they'd served their purpose. Unfortunately for those players who thought their privacy rights would be respected, the IRS seized computer files, printouts, and samples related to those tests as part of the BALCO investigation.

District Court judges in three separate jurisdictions all ruled that the federal agents had overstepped their bounds by seizing materials about the survey testing from two different laboratories who'd performed the tests for MLB. The objections that had been raised by the MLBPA in each of the three cases was that the feds had initially sought information about eleven players named in the BALCO case, but in seizing computer records they had also grabbed the test results of every major league ballplayer, the grand majority of whom weren't, at that time, targets of investigation. Accordingly, the IRS was ordered to return the materials they'd seized.

Those decisions were appealed, however, and last week an appeals court ruled that the federal agents acted within their authority and had a right to keep and use the seized documents, computer files, and specimens. This decision could have far-reaching consequences in baseball, as the list of players who failed their drug tests in 2003 could be used in the Bonds perjury prosecution, the Miguel Tejada perjury investigation, and the upcoming congressional hearings concerning the allegations made in the Mitchell Report against Roger Clemens, Andy Pettitte, and Chuck Knoblauch.

Beyond baseball, Circuit Court Judge Sydney Thomas put it best in his blistering 65-page dissenting opinion:

The stakes in this case are high. The government claims the right to seize and retain-without warrant or even a suspicion of criminal activity-any patient's confidential medical record or other confidential personal information contained in a computer directory so long as it has a legitimate warrant or subpoena for any other individual patient's record that may be stored on the same computer. The government attempted to justify this novel theory on a breathtaking expansion of the "plain view" doctrine, which clearly has no application to intermingled private electronic data.

The consequences of this decision are profound. Today's decision will allow the government unprecedented easy access to confidential medical and other private information about citizens who are under no suspicion of having been involved in criminal activity. At a time when our medical institutions are working diligently to provide physicians with easy nationwide electronic access to patient records in order to improve the care and treatment of our citizens, the opinion poses a very serious threat to the confidentiality of patient records and ultimately to the effective delivery of health care itself.

The majority's holding will also significantly and adversely impact the viability of voluntary workplace drug testing. As the National Chamber of Commerce has pointed out in its amicus brief, today's decision will make it very unlikely that employees or unions will agree to any voluntary employer drug testing in the future, as any promise of confidentiality has now been rendered completely illusory. It will make efforts to curb substance abuse in the workplace harder, not easier.

Hendricks Releases "The Clemens Report"

After the heavy legal wrangling of the first two news items, this 49-page brief issued by Roger Clemens's agent, Randy Hendricks, is an entertaining trifle. It's a sabermetric study of sorts, comparing Roger Clemens's career path with the careers of a handful of other notable starting pitchers, mainly Randy Johnson, Curt Schilling, and Nolan Ryan.

The purpose of the study? That's not clear on the document's face. Most of the numbers cited point toward the conclusion that it's hard to predict a pitcher's career path. The text of the report waxes anecdotal about Clemens's splitter and unspecified improvements in the movement and location of his pitches in the later years of his career. There isn't any mention in the document of the words "steroid" or "HGH," but the entire point seems to be showing that a pitcher can experience high and low performance after the age of 40, without the benefits of performance-enhancing drugs.

Given the tenor of the congressional hearings a few weeks back, it's clear that at least a few of the people who will be questioning Roger Clemens believe that his late-career performance record-as much as if not more so than Brian McNamee's testimony-is the most damning evidence against him for PED use. A public education campaign pointing out that Hall of Fame-caliber players tend to have different career trajectories than regular players might make for a smarter public dialog on this issue, but I'm not sure that this Report is the right tool for that campaign. The cherry-picked player comparisons, the conclusions that aren't backed by data, and the occasional factual error (such as one chart that superimposes Randy Johnson's age on Curt Schilling's performance record) all undercut the Report's purpose, and lend it a rushed-out-the-door quality. But the fatal flaw is the Report's refusal to address the elephant in the room-the steroid allegations against Hendricks's client.

Derek Jacques is an author of Baseball Prospectus. 
Click here to see Derek's other articles. You can contact Derek by clicking here

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