Friday, December 14, 2007

The Mitchell Report Is Unlikely to Trigger a Wave of Prosecutions

The long-awaited report by former Senator George Mitchell and a cast of associates and partners from DLA Piper has landed -- all 400+ pages counting appendices -- and the sensational headlines are already available.  The report (here) names a few prominent players for their use of performance enhancing drugs, including future Hall of Famers Barry Bonds (no great shock there) and Roger Clemens (plus Gary Sheffield if you think he'll make the Hall), and many who were at best obscure (including one I taught when he was an undergrad).  Mitchell relied primarily on two witnesses who spoke with him as a condition of their agreements with federal prosecutors, plus statements from a few players and club officials.  The recurrent theme in the report is the lack of cooperation from the players identified.

With so many individuals named as having purchased illegal substances, will we see the federal government unleash a tide of prosecutions?  My short answer is "no."  While one should never say "never," the report is just that -- a conclusion by Senator Mitchell based on the evidence he accumulated, without any outside scrutiny of his determinations.  Is there enough there for a criminal case?  Federal prosecutors have heard much the same thing, and I think it is unlikely that they would seek indictments based primarily on the word of cooperating witnesses who are admitted steroids dealers.  Mitchell also has some documentary evidence for transactions with a few players, which would bolster a case against them.  But going after the end-users is not very appealing when the bad guys -- the dealers -- provide the bulk of the evidence.

Even if prosecutors wanted to pursue prosecutions, they would have a substantial statute of limitations problem for a number of players.  The federal statute of limitations period is five years, as provided in 18 U.S.C. sec. 3282, so any transaction before December 2002 would be out, unless prosecutors could charge a conspiracy to bring the case within the limitations period.  For example, in looking at the information about Clemens, much of the discussion involves supposed steroids use before 2002, and while the report insinuates it continued there are no claimed instances of use within the limitations period.  Mitchell smartly doesn't talk about prosecution because it would be difficult for most of the players.

Because Mitchell didn't get much if any cooperation from players, most of those named -- excluding former players like David Segui and Jose Canseco who have admitted to steroid use -- have not boxed themselves in with prior statements that can be used to undermine their credibility.  They may be able to assert the "Barry Bonds Defense" offered in his 2003 grand jury testimony: I didn't know what I took was steroids, I thought it was _______ [flaxseed oil in his case]."  Do prosecutors want to bring a series of cases throughout the country against athletes, some with very deep pockets, who may be quite appealing to jurors?  Never say never, but I have to think that we won't see any criminal cases emerging from the Mitchell report because there's unlikely to be much public support for such a use of resources. (ph)

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