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.

Q: Can the government force Anderson to testify?

A: No, but the prosecutors and judge can do their best to make his life hell if he doesn’t. As citizens we don’t have a right to refuse to cooperate with law enforcement (including grand juries). This is true so long as we aren’t forced to incriminate ourselves by cooperating. In Anderson’s case, he was given immunity for his cooperation, just as Bonds was given immunity when he was ordered to testify in the BALCO case, so that nothing Anderson revealed to the grand jury would be used against him. In spite of this protection, Anderson refused to testify and so the judge sent him to jail. Anderson can be kept in jail until he agrees to testify or he convinces the judge that no amount of jail time will make him change his mind. Recently, Anderson was recalled by the grand jury and, reportedly, he again refused to cooperate. Afterward, he paid a short visit to the judge’s chambers and, instead of being sent back to jail he was allowed to leave the courthouse. He remains free. Anderson’s attorney is Mark Geragos, who dealt with similar contempt issues in Susan McDougal’s case.

Q: Why wasn’t Anderson sent back to jail?

A: We don’t know. Maybe he flipped and agreed to testify. Or maybe Anderson and Geragos convinced the judge he wasn’t going to talk. It would be remarkable if they convinced the judge, after spending only a couple of weeks in jail, that Anderson was never going to testify, but it’s possible.

When a judge jails an uncooperative witness he is trying to persuade him to testify. Call it a legal fiction but it’s meant to be an act of persuasion, not punishment; the court can try to persuade the witness, but it can’t punish him without giving him a trial. When it’s clear that the witness won’t be persuaded by sitting in jail, then by leaving him in jail the court would be crossing the line from persuasion to punishment–without due process. The court shouldn’t do that (as it did in Susan McDougal’s case). Instead, the court should refer the case to the U.S. Attorney’s Office, at which point the USAO will determine if it wants to prosecute the witness on a charge of criminal contempt. The same issues came up in Judith Miller’s case.

Q: Is Anderson the prosecution’s whole case?

A: No. Federal prosecutors would never base their case on a single witness. If what has been reported in Game of Shadows and the press is accurate, the government already has enough to get an indictment even without Anderson’s help. All of that evidence–witnesses, drug calendars, medical records, bank statements–is uncontested right now. Kimberly Bell and Steve Hoskins might get creamed on cross-examination at trial, but they haven’t been cross-examined yet.

In the grand jury the prosecutors shoot free throws. They only have to convince the grand jury that it’s more likely than not Bonds committed these crimes, and it’s hard to imagine a grand jury that wouldn’t give the prosecutors the benefit of the doubt, at least for finding that probable cause exists. That’s good enough for now, but federal prosecutors don’t rush into things and they don’t settle for establishing probable cause if, with a little patience, they can have enough to prove their case beyond a reasonable doubt by the time they leave the grand jury. Anderson would be the coup de grace.

Q: Does it seem likely that if Anderson testifies he’ll exonerate Bonds?

A: The government might have enough to get a conviction even without Anderson, but if he flips … Bonds is toast. A little patience might save everyone time and money in the long run.

Q: Did Anderson’s guilty plea agreement in the BALCO case promise him he wouldn’t have to cooperate any further?

A: We don’t know that either. The agreement hasn’t been leaked to the press. According to Anderson’s attorney, the agreement “expressly” freed Anderson from having to cooperate any further even if he was granted immunity from prosecution. A plea agreement is a contract between the government and the defendant, and people can contract to do just about anything, so it’s possible that Anderson’s deal was what his lawyer says it was. But in the usual case the government requires cooperation before it enters a deal. I have never seen a plea agreement that promised the defendant he wouldn’t have to cooperate any further. I discussed this with several former longtime Assistant U.S. Attorneys who are now doing white-collar criminal defense work and none of them has ever seen an agreement like that.

What they have seen: plea agreements that don’t mention a requirement of cooperation. The sentencing phase of a federal trial is mostly a matter of applying demerits and credits. If a guy is a repeat offender, that’s a demerit. If he accepts responsibility for his actions by cooperating with the government, that’s a credit. This is known as aggravation and mitigation. If the defendant doesn’t want to agree to cooperate, that’s fine; they’ll keep it out of the agreement but he won’t be able to get credit for cooperating. According to Game of Shadows, the agreement didn’t require the BALCO defendants to name names or testify against other targets. There is a critical distinction between not requiring cooperation in order to get the plea deal, and expressly exempting future cooperation. If Geragos is correct, then you have to wonder on what basis the prosecutors are seeking to compel his testimony, and on what basis the judge sent him to jail for refusing to cooperate. Are they acting in bad faith? Are they stupid? Or are the attorneys for Anderson and Bonds dissembling for their client? We’ll see.

Q: Why are we only hearing from the defense attorneys?

A: It’s not because the prosecutors are afraid they have a weak case. It’s because they are not supposed to talk publicly about a pending case. The code of ethics prohibits it. Not all prosecutors follow this rule, and you can look at the Duke rape case to see an example of that. In this case, the prosecution has followed the rule and done its talking in the grand jury room. Defense attorneys talk to the press. They shouldn’t, but they do. Too often, press-friendly attorneys make outlandish accusations and seem to invest themselves in the stupidity of the American people. These lawyers want to influence the jury pool, save their client’s reputation, and/or gain celebrity for themselves. They’re not trying to educate the public–they have an agenda, to save their client’s neck, and in the service of that agenda sometimes they say things that don’t necessarily square with the truth. When they do it in court they get a pass. We call it zealous advocacy. When they do it in the press, it’s called lying. Some defense lawyers help the press get at the truth (see the Duke case), and sometimes a client really does need someone to stand up for him in public. It’s entertainment, it’s public relations, but it’s not law.

Q: Will Bonds be able to plead no contest?

A: No. The USAO has a policy of aggressively opposing a nolo contendre plea except in the most unusual circumstances. This case doesn’t qualify as an exception, not nearly. Also, the judge would have to go along with a nolo contendre plea, something he won’t do if Bonds showed contempt for the judicial process by committing perjury.

Q: Can Bonds say he didn’t know what Anderson was giving him?

A: He can, but it won’t work. If he uses that as a defense the government will ask for (and get) what’s called an “ostrich instruction.” He told the BALCO grand jury that if the Cream and the Clear were controlled substances, he didn’t know it because he never asked and he was never told. In light of what we know about his teammates’ use of the same drugs, what we know of how Bonds’s body changed, and what we know about Anderson’s admitted crimes, it would seem that if Bonds really never knew what he was taking it’s because he deliberately avoided finding out. The ostrich instruction tells the jury it can find that this deliberate avoidance of knowledge is the same thing as actual knowledge. And remember that he wasn’t only asked about the Cream and the Clear. He was asked about a variety of controlled substances, all of them material to the BALCO case, and denied using any of them. He admitted to using the Cream and the Clear, but without knowing what they really were. If the government can show that he lied about using any of these drugs, they’ll have their case for perjury.

Q: What’s an example of the ostrich defense?

A: Let’s say Bowater is a recovering alcoholic. Bowater asks Doofus for a glass of iced tea. What Doofus gives Bowater smells just like whiskey, tastes just like whiskey, and goes right to his head like whiskey. Bowater never asks what was in the glass. He just asks for more iced tea. If you were in Bowater’s AA group would you believe he didn’t know he was drinking whiskey? You can Google “ostrich instruction” and you’ll find plenty of examples like this that show why the defense doesn’t work.

Q: Will Bonds go to jail?

A: The likelihood of Barry Bonds going to jail if he gets indicted is high. If he gets convicted of perjury, it’s certain. If he gets convicted of perjury, he will go to jail for at least as long as the guys who cooperated, but most likely longer. This means he’s likely to do more than three months. If he gets convicted on tax charges, he could do additional time. If he gets convicted of the tax stuff alone, he could do some time but he might be able to avoid jail. At a minimum, he would have to pay the back taxes, interest, a 75% premium on that amount, and a fine. I’m oversimplifying here, but a rule of thumb is to take the amount owed in back taxes and double it.

Keith Scherer practices state, federal, and military criminal defense in Chicago and he has been a contributor to Baseball Prospectus since 2000. You can contact him by clicking here.

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