Home Run Derby

The esteemed Poobah of our little lodge of Water Buffaloes, in a reckless moment, asked if I was interested in writing something for the site. 

I tried in vain to point out that, all appearances to the contrary, I am, in fact, a baseball moron.  I couldn’t calculate a WHIP, OBP, or IRA if you wired me up to an Intel Core Duo.  I have no idea which Tavarez is which, even if you give me their first names.  I follow professional baseball mainly for the freak-show thrill of players like David Wells or my beloved El Guapo and the Count Rugen-esque interest in pain that led me to the Cubs.  In July, we Cub fans typically look like the gentleman above and are considered by the baseball world to be no one of consequence.

Our Poobah reminded me, however, that I am a lawyer (a fact most lawyers successfully repress through the liberal application of martinis and gin-and-tonics) and that there may be some intersection of law and baseball. So I’ll take this inaugural piece to write about the most obvious and relevant meeting point, one raised by our own proponent of Greek love yesterday - Barry Bonds.

It’s become as regular as reports of the latest suicide bombing in Iraq, and for Bud Selig probably equally as welcome: Barry Bonds hits another one out and crept closer to the All-Time Home Run Record. At this point, barring intervention from a God who actually hears and answers Curt Schilling’s prayers (and isn’t that a scary thought), Bonds is going to break Hank Aaron’s record. It’s often remarked that Bud has been waiting for someone, anyone, in law enforcement to rid him of this troublesome Giant. Unfortunately, when you look at what Bonds is potentially on the hook for, it seems Bud may be waiting a while … more after the jump

As anyone who’s followed the steroid scandal knows, baseball did not test for steroids until last season (2006). Steroid use itself was arguably banned in the late 90s, but the mere fact that this is a subject of debate shows how clear that proscription was. Nevertheless, whatever the rules of MLB, didn’t Bonds violate the law when he allegedly roided up?  Remember, kids, it’s “allegedly.” 

The short answer is maybe. Anabolic steroids are “controlled substances” under the Federal Controlled Substances Act, found in Title 21 of the United States Code. Controlled substances are divided into several categories, referred to as “Schedules,” based on the nature and severity of the drug’s effects and addictive properties. Steroids are designated as a Schedule III drug (to give perspective, heroin is a Schedule I) This status means that their manufacture, sales and distribution have to occur within very strict regulatory parameters. Generally speaking, they can be prescribed by doctors for certain medical conditions; needless to say, BALCO’s activities fell well outside these parameters. Criminal penalties are laid out in the Act, and while the real juju is reserved for traffickers (trafficking in Schedule III drugs, in any amount, can net you up to 5 years in federal PMITA prison for a first offense), simple possession is criminalized in 21 U.S.C. Sec. 844. This provides for up to one year in prison for anyone who “knowingly or intentionally” possesses a controlled substance outside the lawful course of distribution. Note the “knowingly” part – that’s where “flaxseed oil” enters the equation. From what we know of the leaked grand jury testimony, Bonds laid down the classic defense of lack of intent, a.k.a. “I didn’t realize there was marijuana in this cigarette, officer!” 

“So what,” you may ask, “I read Game of Shadows and they’ve got lots of dirt on the guy – what’s the holdup?” The answer, at least in part, is that for now prosecutors have chosen to focus on a case of perjury, which carries potentially much more severe penalties (up to five years in prison) than mere drug possession. Perjury is the big gun in this scenario, drug possession is an afterthought. The burden on the prosecution is similar, however – they have to prove Bonds lied before the BALCO grand jury about unknowingly taking steroids. And while there are a number of witnesses, as noted in Game, that could undermine Bonds’ defense, they all have credibility issues from a trial lawyer perspective (i.e., the girlfriend), and/or had insufficient direct contact with Bonds to really drive the case home.

All except one: Greg Anderson.  You remember him – Bonds’ trainer, confidant, and fanatically devoted follower. The muscular Smithers to Barry’s roided up Mr. Burns.  He also has credibility issues, but there’s no denying his intimate knowledge of exactly what Bonds was up to. 

Hmmmmm – shave the goatee and add some glasses  . . .

According to Game, he played Virgil for Bonds’ traipse through the ‘roid inferno. Federal prosecutors have been wanting very much to talk to him about Bonds, preferably under oath and in front of a grand jury. Problem is - Greg Anderson is not talking. He’s under subpoena, and since he already pled guilty for the BALCO events, he has no self-incrimination privilege to rely on (his attorneys have made some objections based on “illegal wiretaps,” but that hasn’t gone anywhere). He was ordered by a judge to comply with the subpoena, and still refused. So Mr. Anderson went to jail for contempt, where he’s currently sitting, still silent, covering Barry’s ass. He’s actually outlasted two grand jury terms, and shows no sign of cracking.  There are mob bosses who can’t buy that kind of omerta. As prosecutors have shown no inclination to pursue Bonds without Anderson’s testimony, it would appear Bud Selig will not be spared his really uncomfortable moment this season.

  Yes, even more uncomfortable than this.

This entry was posted on Friday, May 11th, 2007 at 12:03 pm and is filed under Baseball Law, Steroids. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.