The Barry Bonds Verdict: The Most Expensive 'Obstruction of Justice' Conviction in U.S. History

by Roger Roots

Recently by Roger Roots: Cooking Meth: How Government Manufactured a Drug Epidemic

On Wednesday, after four days of deliberations, a jury of twelve San Franciscans convicted baseball slugger Barry Bonds of one count of "obstruction of justice" while deadlocking on three federal perjury counts. So ends one of the most expensive – and by far one of the most trivial – federal trials in U.S. history. The crime of "obstruction of justice," a catch-all offense defined as "an attempt to interfere" with the judicial system, was apparently applied to Bonds because his approach to grand jury inquiries regarding prior steroid use had been less than appropriately groveling or confessional. Bonds remains innocent of any offense directly implicating him in the use of steroids or other performance-enhancing drugs.

The Bonds trial was the culmination of almost ten years of investigation and intimidation of Bonds and his supplement supplier(s). (And, of course, the case may continue for years as the parties retrench and relitigate their claims on appeal and/or retrial.) The government pursued a case where no private complaint was ever made and where no direct witness to Bonds’ alleged offenses ever voluntarily presented himself. The government jailed one prospective witness repeatedly in an unsuccessful attempt to coerce him into testifying against Bonds.

Bonds is not just the all-time home run champ. He holds more than a dozen important major league records including records for single-season home runs, home runs against different pitchers, all-time walks and intentional walks, single-season walks and intentional walks, single-season on-base percentage, highest single-season OPS ("on-base plus slugging" ratio), single-season slugging percentage, consecutive walks, consecutive games with a walk, consecutive plate appearances reaching base, most MVP awards, most consecutive MVP awards. Bonds is the sole member of the 500/500 club, meaning he is the only player in Major League history to both hit 500 home runs and steal 500 bases. Bonds’ achievements will probably never be surpassed.

It is a safe bet that Bonds would never have been prosecuted at all if he had been an average or forgettable player. (Similarly, pitching great Roger Clemens is almost certainly being prosecuted solely because Barry Bonds was prosecuted.)

The costs of the Feds’ obsessive pursuit of Bonds were estimated at $55 million in early 2009. These costs have doubtlessly grown substantially in the two years since. (One estimate is that costs of the Bonds prosecution now approach $100 million). Compare these figures to the costs of the Clinton/Lewinsky investigation, $40 million, or the total costs of the 9/11 Commission investigation, $14 million. Remember that steroids are considered only a "Schedule III" controlled substance under federal law and are legally purchased with a prescription. MLB players were never tested for steroids until 2002 – after some of the alleged steroid use that Bonds was accused of lying about before a 2003 grand jury.

Normally, prosecutors do not initiate a prosecution until they are in possession of evidence to support their claims. In the Barry Bonds case, federal prosecutors indicted first (probably because they were approaching the end of a five-year statute of limitations period), and then continued to investigate the case in hopes of substantiating claims they had made in the indictment. Bonds’ friends, trainers, girlfriends, relatives, relatives of trainers, girlfriends of trainers, etc., etc., etc., were all questioned.

The Feds repeatedly turned to one of Bonds’ trainers, Greg Anderson, to substantiate their accusations. What physical evidence existed against Bonds – some entries in some notebooks and three urine samples – could not be introduced without the testimony of Anderson that it pertained to Bonds. But Anderson had himself been targeted and abused by the federal court system and could not be made to cooperate. Without Anderson’s testimony regarding the chain of custody of the urine samples and the notebook writings, the evidence amounted to nothing but three random jars of urine and some scribblings.

In response to Anderson’s silence, the Feds made Anderson’s life a living hell. Anderson was found in contempt of court and sent to prison in July 2006 when he initially refused to testify against Bonds before a grand jury. He was released a couple of weeks later after the grand jury term expired without indicting Bonds. When federal prosecutors convened another grand jury to investigate Bonds, Anderson was again imprisoned for contempt of court. He was released after spending over a year in federal prison.

The day after Anderson was released from prison for his second contempt charge, his wife Nicole Gestas received an intimidating "target letter" from the U.S. Attorneys Office, threatening to charge her with "criminal conspiracy" if she refused to cooperate with the feds. Unbeknownst to Gestas, the Feds had been surveilling and stalking her for weeks, and had even planted an undercover agent in the local Powerhouse Gym where Gestas worked. The agent’s objective was to befriend Gestas and get her to talk about Bonds and steroids. The covert operation proved fruitless.

Then a team of twenty federal agents raided the home of Gestas’ mother (Greg Anderson's mother-in-law). The search warrant was purportedly aimed at developing evidence that Anderson’s mother-in-law was involved in tax improprieties. But Anderson's attorney Mark Geragos openly accused the Feds of using the raid to intimidate Anderson’s family members in retaliation for Anderson's continued refusal to testify against Barry Bonds. Immediately prior to the Bonds trial, the Department of Justice again had Anderson imprisoned for contempt of court a third time. Anderson may in fact be the only person in American history jailed three times for contempt for refusal to testify about a single matter.

During the five-year period between 2003 and 2008, Justice Department "anti-doping investigators" violated search-and-seizure standards repeatedly as they sought to obtain confidential records of a private steroid survey conducted by Major League Baseball (MLB) in 2003. The 2003 survey testing was supposedly done so that MLB could determine what percentage of players were using steroids. Every assurance was given to the players that the survey tests were anonymous. Not only would the samples be stored separately from any identifying information, but different companies would be doing the surveying and the data analysis. A player’s name was never to be attached to a sample – and no one, not MLB, not the players’ union, not the staff who drew the samples – not even the company that "coordinated" the survey – was supposed to be privy to the two sets of information.

After learning of MLB’s private steroid survey, the Justice Department immediately subpoenaed the survey results (in pursuit of Bonds as well as several other high-profile MLB players). But when prosecutors learned that MLB’s contractor companies would challenge the subpoenas in court, the government launched a violent multi-jurisdictional raid (complete with guns drawn) on the firms. If you believe federal prosecutors (and I don’t) the company that promised complete anonymity just happened to have a piece of paper at its Long Beach office matching test results to names of players when the search warrant was executed at the company’s offices.

The government’s blatant disregard for Fourth Amendment law was denounced and invalidated by multiple U.S. district courts and two opinions of the Ninth Circuit Court of Appeals. This did not stop the "anti-doping" agents from illegally leaking a concocted list of baseball players who had allegedly failed steroid tests to the media. Sports Illustrated famously outed Alex Rodriguez in 2009 citing unnamed government sources. As of this date, not a single investigator has been punished or prosecuted for this misconduct. In fact, one of the most lawless violators, Jeff Novitsky, was promoted to work as a senior investigator with the FDA.

There are still those who claim to be shocked at the notion that top-level athletes might use the latest performance-enhancing training methods and substances. But "fan outrage seems to have diminished" as the government has taken on the role of omnipotent umpire. Wednesday’s mixed-bag verdict in the Barry Bonds trial may take some of the wind out of the sails of America’s steroid witch hunters. Several commentators are depicting the Bonds verdict as a vindication of Novitsky and the federal muscle hunters, or even claiming (as WND’s subtitled link does) that the verdict proves Bonds "Lied to federal grand jury about knowingly taking performance-enhancing substances." But the jury’s throwaway obstruction-of-justice conviction represents an astounding defeat for the U.S. Justice Department.

Since the first grand jury inquiry, the baseball steroid investigations have been typified by investigator misconduct, prosecutorial overreaching and fake grandstanding over infidelity to the rule of law or fair play in sports. Baseball’s ongoing steroid self-inquiry is in fact a ten-year record of warrantless searches, coerced statements, illegal leaks, and strong-armed threats and intimidation.

April 16, 2011

Dr. Roger Roots, J.D., Ph.D. [send him mail] is a lawyer, writer and sociologist originally from Montana.

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