Friday, April 14, 2006
It should not come as a great shock that a federal grand jury in San Francisco is investigating star slugger Barry Bonds for perjury related to his testimony in December 2003 in the Balco (Bay Area Laboratory Co-operative) steroid investigation. CNN.com reports (here) that the grand jury began hearing testimony about one month ago, around the time reports emerged about the book "Game of Shadows" that asserts Bonds began using steroids in 1998, after Mark McGwire broke Babe Ruth's single-season home run record. The San Francisco Chronicle reported in 2004 that Bonds told the grand jury that he used two items that he did not know contained steroids, but that he never knowingly used steroids.
The grand jury has subpoenaed, among others, Bonds' personal physician, according to an AP story (here). The doctor accompanied Bonds to Balco's offices and drew his blood there, according to "Game of Shadows." In March 2005, a reputed former girlfriend of Bonds testified before the Balco grand jury that he took steroids (see earlier post here). The testimony of the physician may corroborate assertions by others about Bonds' use of steroids at the time he testified before the grand jury, contradicting his testimony. As an earlier post (here) noted, however, a perjury prosecution will depend on the specificity of the questions and answers from the 2003 testimony.
Mike Rains, Bonds' attorney, may already be setting up the defense to an indictment by arguing that the government set a "perjury trap." According to the CNN.com story, Raines said, ""Look no further than Martha Stewart. The trap is perjury . . . You offer immunity and you get him in there and then you ask them questions and you get them on lying to federal officers. That's the trap. That's exactly what they got Martha for." I think the comparison to Martha Stewart is rather inapt. Even if one accepts that it was unfair to prosecute Stewart for false statements but not the underlying subject of the investigation, she did not receive immunity and her statements were not under oath. Bonds received immunity for the purpose of telling the truth, and the government had no desire to obtain false testimony from him. Indeed, the reason why immunity is granted in most cases is because the person will provide evidence against others and avoids prosecution. The immunity grant states explicitly that false testimony can be used against the person, and this appears to be the exact type of situation in which a perjury prosecution is most appropriate. The witness agrees to tell the truth to assist an investigation, and then gives false testimony -- that strikes me as the paradigmatic scenario for a perjury prosecution. Granting immunity is probably the least likely situation in which a so-called "perjury trap" would be set by prosecutors. (ph)