Friday, January 4, 2008
While the odds of this happening are probably no better than 10,000-1, there is always the possibility that home run king Barry Bonds might decide to work out a plea agreement to limit his potential punishment from the perjury and obstruction of justice charges he faces. The prosecution of former Olympic gold medalist Marion Jones may give something of a guide to how Bonds could resolve the case, if prosecutors we willing to go along. Jones agreed to plead guilty to one count of making a false statement in connection with the Balco (Bay Area Laboratory Co-operative) investigation, and she has filed a brief (available below) requesting a sentence that will involve no prison time, only probation. Under the Federal Sentencing Guidelines, the sentence range is 0-6 months, a position the government agrees with. In her filing, Jones' lawyer argues that the District Court should take into consideration the substantial collateral consequences of her guilty plea on her reputation:
The guilty plea in this matter and the circumstances surrounding it have been a very painful and life-changing experience for Marion Jones-Thompson. She has been cast from American hero to national disgrace. This part of her story will forever be one of personal tragedy. To be clear, the public scorn, from a nation that once adored her, and her fall from grace have been severe punishments. She has suffered enormous personal shame, anguish, and embarrassment. She has been stripped of her gold medals, her accomplishments, her wealth and her public standing.
The Supreme Court's recent decision in Gall emphasizing the discretion district judges have to fashion individualized sentences makes this type of argument potentially persuasive, and it would not be a surprise if Jones received probation or, at worst, home confinement. While prosecutors have only recommended that the judge sentence within the Guidelines range, they have not taken any position on the actual sentence, and I suspect they would have no objection to straight probation for Jones.
Could Bonds get the same deal? The indictment in his case involves perjury and obstruction, and if convicted the base offense level under Sec. 2J1.3 of the Guidelines would be 14 rather than the 6 that Jones began with under Sec. 2B1.1. Jones also received the benefit of the two-level downward adjustment for acceptance of responsibility, which kept her in the lowest sentencing range. If Bonds is convicted, he faces a minimum Guidelines range of 15-21 months. A plea bargain could be fashioned to have him plead guilty to making a false statement under Sec. 1001 rather than perjury because his grand jury testimony would come within that statutory provision. As such, he could also be in the same position as Jones, assuming prosecutors were willing to make such a deal and, more importantly, Bonds agreed to it. There might even be the possibility of a nolo plea to a single Sec. 1001 charge, or perhaps even a criminal contempt that could involve a deferred prosecution agreement, similar to the resolution of perjury charges against NBA star Chris Webber, who only paid a fine. Unlikely, to be sure, but possible.
Bonds, however, is fighting to do more than just avoid a conviction, but also to save his legacy as a baseball player. When that consideration gets thrown into the mix, the potential ppunishment diminishes in importance. Nevertheless, the Jones sentencing provides an outline as to what Bonds' lawyers might be able to negotiate, especially because the U.S. Attorney's Office for the Northern District of California signed off on the Jones plea agreement and sentencing. (ph)