For 66 years, Dec. 7 has been a day that has lived in infamy in America’s consciousness. While nowhere near as epic in proportion as the Japanese bombing of Pearl Harbor, today baseball star Barry Bonds will make his first appearance at the U.S. courthouse in San Francisco, formally setting in motion a criminal arraignment that already has resulted in his own historic infamy. The indictment is not a surprise.
When Bonds broke the hallowed home-run record of Hank Aaron, and by extension, of Babe Ruth, in the 2007 season, the feat was viewed by “baseball people” as inevitable. Those same people, although more circumspect, also view the changes in his body, bulk, head and shoe size, and slugging prowess after the age of 39 as compelling evidence of steroid use. The federal indictment handed down on Nov. 15, alleges that Bonds committed perjury and obstructed justice in 2003 by lying to a grand jury investigating the illegal distribution of anabolic steroids. Most baseball insiders have been pronouncing in columns, on blogs and over airways that Bonds’ convictions and incarceration are equally inevitable.
Step out of the batter’s box. Not so fast.
This column is not a defense of Barry Bonds. Conversely, it is not an editorial prosecution. Rather, it is intended as a brief primer for interested readers on four key legal components of the case that are in play and which will weave through the fabric of this impending American melodrama: The definition of perjury, the burden of reasonable doubt, venue and circumstantial evidence.
Perjury is one of the hardest crimes for the government to prove. The legal definition is set out with some precision at 18 USC § 1623; the federal statute. More concisely, it is a false statement about an important fact, under oath, made with knowledge of the falsity. It requires a jury’s inspection of not just Bonds’ brain function during his testimony but whether he had a criminal intent to lie. The defense is whether he knew that what he said was false, at the time he said it. If he didn’t commit perjury he didn’t obstruct justice.
The government must prove Bonds’ guilt beyond a reasonable doubt — the highest burden of proof in our legal system. It really means there must be an abiding conviction that the crime was committed and that the jurors have no doubt — no reasonable doubt — as to guilt, not innocence. Bonds does not have to utter a word. This burden must be met by prosecutors.
Every experienced trial lawyer’s second, if not first, question when approached with a case is, “Where is the venue?” The venue is the place where the trial will occur and from which the jurors will be summoned. The United States vs. Barry Lamar Bonds will be tried in San Francisco. This is because San Francisco is where the perjury and obstruction allegedly took place.
If Bonds were allowed to write the script for this, the biggest game of his life, he would pick San Francisco as the place to be judged. The community is not a built-in friend of the federal government. It is the built-in friend of the former San Francisco Giant it has worshipped for 15 years.
O.J. Simpson, USC Heisman hero, had Los Angeles as his venue, with its legacy of 100 years of racial tension between blacks and police. The eight members of the Chicago White Sox accused of fixing the 1919 World Series went to court in downtown Chicago in the infamous Black Sox Scandal. An old trial judge told me, in my youth, long ago in a rural court room, “Son, justice is where you find it.” Simpson was acquitted. So were the White Sox eight. Both verdicts were reached in spite of what seemed to be overwhelming evidence supporting conviction.
Direct evidence can prove a fact by itself. If Bonds confesses, that is direct evidence. Gary Anderson, Bonds’ childhood friend and personal trainer, has refused to testify about what he knows and he served almost a year in jail for that refusal before his recent release. His testimony would be direct evidence.
Circumstantial evidence does not directly prove the issue to be decided, but does confirm other facts that may logically and reasonably suggest proof. Circumstantial evidence is supposed to bear the same weight as direct evidence. But a case built entirely or substantially on circumstantial evidence is many times harder to prove.
Bond’s angry ex-girlfriend, Kimberly Bell, has told Playboy magazine, for money, what Bonds supposedly told her about his use of steroids; that’s circumstantial evidence. Bonds’ positive test result for steroid use is circumstantial evidence.
Obviously there is more to be revealed. Both sides are now warming up. The government leaked the grand jury indictment to the national media. Bonds’ lawyer questioned the government’s competency, equating the indictment to it trying to define “waterboarding” as torture.
Whatever anticipation and speculation surrounds the case, growing like crowd noise at the ballpark, this is definitely not a bang-bang play. It will probably go into extra innings.
Play ball!
Santa Barbara attorney Michael Berger is a State Bar of California-certified specialist in criminal law.