Thursday, March 24, 2011

Barry Bonds (sports blogging)

TK wrote a really thorough and lawyerly post on why the Barry Bonds trial is a waste of money. I actually completely agree with his premise. But I'd still like to offer a counter-point. After trying my hand at sports writing once previously, I thought I'd give it another shot.
First, some opinionated facts opinions on why I think Barry Bonds is sort of an awful human being:

A) I don't have a problem with cheating, which is what the use of performance enhancing drugs in sports is. I really don't. Once everyone is cheating, it's no longer cheating and the rules need to change. I have a problem with someone so blatantly denying they are using PEDs when it is so obvious, as if everyone is stupid. I also have an issue with throwing his supposed best friend completely and totally under the bus so that he may continue cheating. Greg Anderson has gone to jail twice now to protect Barry Bonds, and Bonds lets him rot there. There are likely payments to an offshore account for such loyalty but we don't really know. 

B) Playing professional baseball is the dream of a lot of little boys. And little girls too, who don't get to have that dream come true. When someone plays as dispassionately, like they aren't even remotely interested in the game, like they don't want to be there, like they'd rather be just about anywhere else, like it's a chore, I don't want to watch them. He shouldn't have been playing the game. Its fairly apparent he hates baseball. How can you hate baseball? That's downright un-American! You're letting the terrorists win! His disdain for the game seems to have softened when the Giants made their World Series run this year but I still never enjoyed watching him play. I also prefer finesse baseball to home runs but that's a personal preference. He was a club house pariah. His lounge chair looming large in the Giants clubhouse. The rifts between him and his teammates well documented. He was not pleasant. 

(As an aside: all of MLB is complicit in the steroid era. To think that owners and managers and staff were ignorant is a complete fallacy. Hell, someone could probably make a RICO case out of it if they were clever enough. Baseball faced a huge popularity issue after the strike and the way to get butts back in seats was HRs and HRs mean power and they preferred to let players get there artificially. So the system turned it's back on what was going on. It helped that in the CBA after the strike, the owners couldn't up the level of oversight in using PEDs, so there was little they could do even if they wanted to (which they didn't want to). They took those restraints with a very *shrug, oh well* attitude. Even the American public was complicit. Everyone knew. At what point the scales got tipped from knowing to being unable to accept it, I'm not sure. I won't even go down the path that the war on drugs itself is a waste of money and that when we apply said war to rich athletes it's REALLY a waste of money, but know that that's also true.) 

C) He openly cheated on his second wife. Go ahead, check it out. It's under the personal section of his wikipedia page. Right there. Blatantly and completely flaunted it in front of her. Was all over the society pages of SF, too. It's ultimately what brought all this Balco stuff to the forefront because hell hath no fury like a socialite scorned. What do you expect from a guy who so openly and completely flaunted the rules of baseball? Not much, one would guess. In fact, it's become a huge issue in this trial. Her saved voice mails are going to be played (maybe) at trial. (How dumb ARE guys? Don't leave voicemails. Use code. Have a lackey do it.)

D) Then you go to law school and find even MORE reasons to think Barry Bonds is an ass. Alongside anti-trust arrangements in baseball and possible collusion among owners in not hiring him after the Giants didn't re-sign him, you feel less bad about his exit from a game he did nothing to help and that was happy to see him go after you take a class on Community Property and the division of marital assets in California. In that class you learn that the community property laws regarding prenuptial agreements in CA are the way they are because of Barry Bonds. How so? Well. On their way to the Vegas chapel to get married Barry Bonds presents his betrothed with a prenup. His non-native English speaking betrothed. And says, "Sign here or else we won't get married..." Charmer. So of course she signs. And when they divorce, two children and several years later, he wants to enforce the prenup that was hastily signed and that was intended for when he was a barely money making rookie and not the multi-million dollar star he is at that point. They head to family court. At the first recess, the judge puts his hand on the mic and asks Bonds for his autograph. Case continues. Prenup enforced. Ah, legal system and your failings, you're awesome! Shortly thereafter, however: the CA legislature takes steps and changes the law. For the legislature to ever find something is egregious enough to warrant a law change is a pretty big deal. You are now REQUIRED, as the non-prenup requesting party, to have an attorney and if you insist on not having on, you are required to sign documents very explicitly saying that you understand you don't have one and the ramifications of that decision. And, your future spouse can no longer hold a prenup over your head on the way to the church; there is a seven day waiting period. So there, Barry, thanks for better prenup laws in California. Hope you had to abide by it and that your second wife takes you to the cleaners in your second divorce.

All of those, of course, aren't reasons for Barry Bonds to be prosecuted for lying under oath (which, as TK pointed out, is the actual charge. Not whether or not he used steroids but whether or not he lied about using them in court. I should point out that this is the same thing Martha Stewart went to jail for. Not for insider trading, but for perjuring herself in a trial about insider trading. This is how the law works though: we can't always prove what you did, though we may know it, so we'll go the backdoor route and we're gonna get you for the ancillary crime). 

There are plenty of bad people, and I'd like to submit that Barry Bonds isn't the best of human beings, that aren't prosecuted for lying in open court. They aren't even prosecuted for various other infractions more serious than lying in open court. But the (lawyer words) totality of the circumstances indicate that this is a man who for far too long has flaunted the law because he is powerful and rich and that raises my hackles.

It's sending a message: you can't lie to the federal government in open court and get away with it. We won't tolerate such disregard for the law. In choosing to enforce this law in this instance do we deter others? Probably not. But we may make them think twice, perhaps, and we let them know that the government is not to be trifled with. If we don't enforce the laws, even the smallest of them, against the richest and most powerful, we send a message that we are soft on crime, applying it haphazardly to those that can't mount a defense or use resources to fight the law, and that anyone with any amount of money can flaunt the law. Law exists to keep order in society. It is the social contract that creates the norms of our society and that are applied against us all. We HAVE to enforce the law against Barry Bonds in order to let all of society know that they apply to us all. This is a pretty high and mighty argument, believing in the rule of law on society, sure, but I do think that's part of the reason they chose to prosecute this.

Are there political aspects to this as well? Sure. There are ADAs trying to make a name for themselves and a chance to take down a hugely famous person. I don't generally believe people are ever being altruistic. There is Bond's attorney who undoubtably has his own reasons for having Bonds go to trial. And while we're talking waste of money, has no one considered the cost to Bonds in going to trial and why he would bother? I can't imagine the cost of his defense. It's gotta be astronomical. At least a million? He could have plead out, paid a fine and been done with it. Instead, this? It kinda defies logic. Unless he's delusional enough to believe in his own innocence...which I almost wouldn't put past him.

The only downside is if the state LOSES the trial then it sort of proves to the public that you can lie in open court and get away with it. People will begin to think they can beat the rap. Because the burden is on the state in a case like this. The government has to prove, beyond a reasonable doubt, that Barry Bonds did what he is being accused of doing. That's a tough burden to prove. It means that there is no reasonable alternative to believe in than that he was lying about what he told the grand jury. Twelve people have to go into a room and determine that among all the mind numbing evidence they've been given, there is almost no other possibility for what happened than him lying. Ever tried to get 12 people to agree on anything? I can't get 5 to agree on dinner plans most of the time. 

And trust me, judicial resources have been used in dumber ways than this. I sat on a jury for a misdemeanor DUI. MISDEMEANOR. A week long trial ($$$) about a guy who was driving a motorcycle drunk. And ya know what? In a lot of ways it was strikingly similar to the Bonds case. Defense's whole argument was "yeah but no one knows for SURE that he was driving because no one SAW it." Which is pretty much what the Bonds defense is doing. "He admitted to using creams but he swears he didn't know what they were so it wasn't a lie!" Let me tell ya, even though it's hard to get 12 people to agree: jurors aren't stupid. They aren't. And the way that jury instructions are written (very specifically) about what elements have to be proven, what you can infer from the testimony that was revealed to you, and how you make a decision, they will hopefully decide "Your deniability isn't really plausible." 

So, could our federal judicial tax dollars in trial be used better elsewhere? Probably. But I still think this is a worthwhile pursuit.

*disclaimers: not an expert, JD but not a lawyer (stupid bar exam) and all opinions expressed herein are my own. Whee! 

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