2007 Archive

Striking Out? For Prosecution, Convicting Bonds May Not Be as Easy as 1-2-3

 Outside the Bay Area, the public seems eager to convict Barry Bonds in the wake of his federal grand jury indictment. But perjury’s challenging burden of proof—and its familiarity to jurors—could make it tougher for the prosecution than some observers anticipate.

“Perjury carries a high standard of intent to show that a defendant knowingly lied,” says Boalt Hall criminal law professor Jonathan Simon ’87. What’s more, Simon notes that many jurors can relate to being forgetful, too busy or “scatter-brained,” a common defense in perjury cases.

“Many people in ordinary life can identify with forgetting, or not being 100 percent certain about something,” he says. “Perjury is a crime of lying, and most of us have some experience with that as opposed to crimes like insider trading that are anchored in experiences quite distant to us.”

Perjury requires proof that a defendant, under oath, knowingly made a false statement as to material facts. The “knowingly” requirement is pivotal: prosecutors must show that Bonds knew his statements were false at the time he gave them. False testimony as a result of faulty memory, misunderstanding, carelessness, mistaken conclusions, or recklessness does not satisfy the “knowingly” element. Although about 90 percent of all federal cases end in conviction, perjury tends to be harder to prove—government data shows that at the end of 2006 only 130 federal prisoners were perjury convicts.

“Most cases that end up in federal court are drug cases, racketeering cases, or other such cases where the underlying behavior often creates a presumption of guilt,” says Simon. “With perjury, you’re more likely to have people who strike us as not stereotypical criminals.”

Bonds was indicted November 15 on four counts of perjury and one count of obstruction of justice, culminating a four-year federal probe into whether he lied under oath to a grand jury investigating steroid use by elite athletes. His allegedly false statements are the basis for the perjury counts, and the grand jury said his alleged pattern of lies represented obstruction of justice. He pleaded not guilty at his arraignment December 7, and his pretrial hearing is set for February 7, although a trial is not expected to begin until late 2008.

 Major League Baseball never identified Bonds, the longtime San Francisco Giants star who broke Hank Aaron’s career home-run record this past season, as testing positive for steroids. The indictment consists mainly of excerpts from Bonds’ December 2003 testimony before a grand jury investigating the Bay Area Laboratory Co-Operative (BALCO). It cites 19 occasions in which Bonds allegedly lied under oath, including claims that he never knowingly took steroids provided by personal trainer Greg Anderson. Anderson spent more than 14 months in jail for refusing to testify, and was released soon after the indictment. His attorneys say he will refuse to testify at Bonds’ trial, meaning prosecutors may again ask for his return to prison for contempt.

Even if evidence exists that Bonds received banned substances, the prosecution may need to show they were labeled as steroids or otherwise designated as something illegal. Otherwise, it will likely argue that Bonds should have known these were banned substances, a tougher case to make. The defense is expected to portray Bonds as the target of a witch hunt, stress that he has never tested positive for steroids, and show that he is not in court for committing a substantive crime. Perjury is one of the few offenses where the government creates an opportunity for someone to commit a crime, in this instance by summoning Bonds to testify under oath.

“The government calls someone in largely for the purpose of creating a prosecutable event,” says Simon, Associate Dean of Boalt’s Jurisprudence and Social Policy Program and faculty co-chair of the Berkeley Center for Criminal Justice. “Often there’s only a weak link to the underlying substantive criminal activity. That gives the defense a chance to create an impression that the crime is only real because the government created this scenario. If the prosecution can create a picture of a defendant perjuring to cover up substantive crimes, it becomes more plausible.”

Some legal experts claim that the high conviction rates in federal cases have less meaning when the defendant is a public figure. Celebrities and other public figures often enjoy a greater presumption of innocence, experts argue, because they are seen in a more favorable light than non-famous defendants. But other legal analysts counter that celebrities such as Bonds—with his reputation for surly, defiant behavior—generate disdain among jurors and that his celebrity status could hurt his defense.

Bonds is the highest-profile figure charged in the BALCO probe. In October, track star and Olympic gold medalist Marion Jones pleaded guilty to lying to federal investigators about using steroids.

If convicted of all felony charges, Bonds faces up to 30 years in prison—five years on each of four perjury counts and 10 years on the obstruction of justice count. Although few criminal law experts expect Bonds would serve anything close to that, Simon points out that Jones and Anderson could influence the sentence. Because Bonds pleaded not guilty, a judge may feel compelled to give him more jail time than Jones, who faces up to six months. Simon adds that if Anderson spent 14 months in prison just to protect Bonds, it seems logical that Bonds could be forced to serve a longer sentence.

Although gaining a conviction for perjury is generally tougher than it is for most other crimes, the task is hardly insurmountable.

“As I like to remind my students, prosecutors don’t have to present an MRI that proves knowledge in the brain to prove perjury,” says Simon. “To evaluate what actually occurred in a given situation, jurors take facts and compare them to normative situations of how things usually work in life. The prosecution will try to establish how players normally interact with their trainers to show that Bonds’ claim that he did not knowingly participate in steroid use was implausible. The better they can succeed in showing that a reasonable player would have understood exactly what the purpose of the activity was, the better chance they have to convict him. Bonds is generally thought of as a highly intelligent person who would be expected to understand what other players understood. Here that reputation might hurt him.”

- By Andrew Cohen