Will Barry Bonds get the Ted Stevens treatment?

One of the bulwarks of the American justice system is that the ends of a prosecution — putting someone away for doing something wrong — do not necessarily justify the means of doing so. In fact, I would argue that the means are often more important than the ends, particularly in high profile cases which shape citizens’ impressions of our legal system. Because the power of the state is so great and its impact on the lives of its citizens so potentially devestating, I would rather see a guilty person go free than law enforcement or prosecutorial misconduct be rewarded or legitimized. The new Attorney General apparently agrees with me:

The Justice Department moved on Wednesday to drop all charges against former Senator Ted Stevens of Alaska, who lost his seat last year just days after being convicted on seven felony counts of ethics violations. The case was one of the most high profile and bitterly fought in a string of corruption investigations into current and former members of Congress. But Justice Department lawyers told a federal court Wednesday that they had discovered a new instance of prosecutorial misconduct, on top of earlier disclosures that had raised questions about the way the case was handled, and asked that the convictions be voided.

The attorney general, Eric H. Holder Jr., said he would not seek a new trial.

I didn’t follow the Stevens case all that closely, but my sense of things was that the withheld evidence was not necessarily anything that would exonerate Stevens, even if it was stuff that the defense could have used to attack the witnesses against Stevens. Put differently, Stevens may still very well have broken the ethics’ laws, but the government has made the judgment that they’re willing to let the conviction drop because the process of obtaining it was obviously tainted.

Hmm, where have we heard this before . . .?

Mr. Novitzky’s detractors, mainly the defendants and their lawyers, say he is biased and unfair. They say he has a vendetta against Mr. Bonds, is seeking fame and financial gain from the case, and puts words into suspects’ mouths. They say he has lied in sworn reports, including on the initial search warrant affidavit that kick-started the investigation of the Bay Area Laboratory Co-Operative and its many famous clients.

Since May, Mr. Bonds’s lawyer, Michael Rains, has accused Mr. Novitzky of lying in the court documents used to obtain much of the evidence gathered against Mr. Bonds, according to letters obtained by The New York Times. Mr. Novitzky’s credibility, motives and methods have been the subject of correspondence between Mr. Rains and the United States attorney’s office in San Francisco.

Those accusations against Novitzsky are old, and they have not derailed the case — bad evidence and Greg Anderson’s refusal to testify have done that — but it’s worth noting that the misconduct of the Stevens’ prosecutors did not prevent that case from going to trial either. There, as in most tainted prosecutions, the scrutiny came later.

The Bonds’ prosecutors has bought some time by appealing the judge’s evidence ruling. In light of the U-turn on the Stevens case, however, one wonders if, in addition to researching and writing an appellate brief, they also aren’t reflecting on whether the whole enterprise is worth the trouble in the first place.


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YankeesfanLen
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YankeesfanLen

Sounds like a good Oliver Stone movie to me.  Seriously, I agree, prosecutors can be holier-than-thou and without accountability at times, to the risk of everyone.
Maybe we should go back to yesterday’s “exit strategy”

Eddie
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Eddie

Would seem to be politically easier to drop a case before an actual trial than to vacate a 7-count conviction!  And in Bonds case, it seems like that dropping the case would avoid further prosecutorial misconduct – relying on witnesses who, from the background we’ve had the opportunity to read about, appear to be the type who would fabricate testimony to suit the prosecutors’ case isn’t a great strategy.

ditmars1929
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ditmars1929

In the case of Stevens, it’s just the usual scumbag political lawyers looking out for one another.

Craig Calcaterra
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Craig Calcaterra
Ditmars—I don’t think you could be more wrong about that.  Traditionally, no group of lawyers looked out for each other more than the prosecution/government lawyers’ bar, and no groups of lawyers with more antipathy for one another than the government bar and the defense bar.  No matter how disparate their interests on a given case, you never see one set of government lawyers doing anything but walking in lockstep with another, and rarely if ever would they roll over for the criminal defense bar, even if they thought maybe they should. With the Stevens thing, the DOJ administration has explicitly… Read more »
ditmars1929
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ditmars1929

Well, then just call me cynical.  Would you feel better if I said scumbag politicians instead of scumbag lawyers?

Jeff Mathews
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Jeff Mathews

So I can only get a square investigation if I’m either a multimillionaire HOF athlete or a senator?  How does that shape my impression of our legal system?

Jack Marshall
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Jack Marshall
Correct Craig—and yet the AP, many news outlets, and several GOP Senators are saying and writing that Stevens has been “exonerated”—-though there is little question that he took what amounted to bribes, lied on the stand (that “loaned” vibrating chair—-loaned for 8 years!), is corrupt as hell, and proud of it. This is like saying the homicidal maniac sprung in “Dirty Harry” because Harry tortured him to get evidence magically became a model citizen as a result of Harry’s misconduct. I agree with you: if the prosecution of Bonds is unethical, throw out the case. But that should only make… Read more »
lisa gray
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lisa gray
i don’t know why the prosecutors NEEDED to **** up the evidence in the stevens trial in order to get convictions. something about that old expression – gilding the lily but with bonds, there IS no evidence except the supposed drug calendars and given novitsky, i have ZERO reason to believe that they aren’t forged. in fact, the evidence against him is so bad it is nothing but a joke. and no i do NOT consider any positive test for THG to be proof that he used steroids because if/when he used it, not only was it not illegal, but… Read more »
Jack Marshall
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Jack Marshall
Lisa, that point of view continues to mystify me. There is no reasonable doubt that Bonds used PEDs, and if he (almost certainly) hadn’t paid off his trainer/pal/dealer (a felony itself) not to testify (or what do you think the guy is so willing to sit in jail for?), he would be dead meat. Sure: even though the other Balco athletes confessed, it makes sense that the one guy on it whose career, appearance and associations scream steroids is an innocent victim. I’m sure the San Francisco Chronicle reporters were forging evidence too. Please. Why are otherwise rational people so… Read more »
Jack Marshall
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Jack Marshall
You’re kidding, right? Victor Conte is a convicted felon and creepazoid of the first water…his testimony would be worth a bucket of warm spit in any trial. Who cares what he “insists”? Roger Clemens “insists,” A-Rod “insisted.” I’ll take Novitsky’s word over Conte’s any day, and so would any objective analyst. Who says the authors of “Game of Shadows” “hate” Bonds? I’ve talked to them…what they seem to be interested in is finding out the truth. I live in Washington DC, and I’ve heard the “hate” argument be used by—-let’s see—-Nixon, Johnson, Carter, Reagan, both Bushes and Carter—-to discredit any… Read more »
lisa gray
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lisa gray
mr. marshall, no, not kidding at all. victor conte is most certainly a convicted felon who threw every client of his to the feds. BUT he denies that barry bonds is throwable? what, you think barry has some sort of hold over a man like him? your term “creepazoid” more accurately refers to novitsky. you obviously have zero experience with bad LEOs, and novitsky is one of the absolute worst. if you wish to disregard any argument which questions the bias of witnesses, be my guest. to misquote mike salfino (who is not referring to you) you obviously suffer from… Read more »
lisa gray
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lisa gray
mr marshall, let’s try to separate out what is and what is not relevant, shall we? there are 2 separate issues about barry lamar 1 – he is being persecuted for supposedly lying under oath (although it is MORE than obvious that he shouldn’t have been called to testify against balco in the first place as he could not help secure convictions of anyone but himself. but I digress…) The crux of the matter is that he stated that he never knowingly used steroids. Granting that he actually DID use THG, at the time it was given to him, it… Read more »
lisa gray
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lisa gray
forgot – interesting that you ignore victor conte, the guy who supplied the other convicted athletes, who INSISTS that he did NOT get any steroids for bonds. interesting that you ignore the fact that conte, who couldn’t WAIT to rat out the rest of his clients, insists that novitsky invented a conversation which he conveniently didn’t bother to tape. interesting that you ignore that fact that the 2 people who wrote the book that is supposed to PROVE that bonds used steroids are 2 people who hate bonds like hitler hated jews. you seem to have a difficult time considering… Read more »
Jack Marshall
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Jack Marshall
We can hold the creepazoid competition at the proper time…I’m no Novitsky fan, but I’d be hard-pressed to think of someone more repellent and less reliable than Victor Conte. I can think of lots of reasons why Conte would vouch for Bonds, making things tougher for his rival creepazoid only being one. The circumstantial evidence supporting the conclusion that Bonds is a steroid cheat (his career, his appearance, his personality, his grand jury testimony, his lame explanations, his failure to even try to repudiate “Game of Shadows,” his trainer, the conduct of his trainer, etc.)so wildly outweighs the few barely-plausible… Read more »
Jack Marshall
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Jack Marshall
Lisa…I read your first replay after I replied to the second. Sorry. And of course, the second part of that reply illuminated your bias, which is simply the basic pro-Bonds rationalizations. You don’t think Bonds’ steroid use did more damage than David Segui’s? Ridiculous. Bonds’ steroid use warped the records of the game, encouraged players at all levels to do the same, and seriously wounded the integrity and reputation of baseball. Rape may be rape, but arson against a shack is not as serious as arson against a cathedral or a high rise, and illegal steroid use has degrees and… Read more »
lisa gray
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lisa gray
mr marshall,   dragging in the comment about “steroid cheat” serves no purpose. the question is quite simple – exactly what evidence exists that barry lamar ever took any steroid compound other than THG and exactly what evidence exists that he knew that THG was a compound that could be classified as a steroid? answer – there is none,inasmuch as neither are reliable determinants of steroid use. as for “facts” you claim to have, there are absolutely none whatsoever. i refuse to convict any baseball player of steroid use based on any statement by a corrupt LEO or by authors… Read more »
lisa gray
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lisa gray
also arson against a shack is no different whatsoever than arson against a cathedral, unless someone is injured/killed. same exact crime. you just feel it is different because of the natures of the structures burned, but that is just your feeling. and quite frankly, your insistence on judgement by feeling and not concrete evidence, then boasting of this as “ethical” scares the heck out of me. as for you being a “prisoner’s advocate,” all i can say is that if you volunteered to be an “advocate” of anyone i knew who was imprisoned, i would warn them to get shut… Read more »
Kevin
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Kevin
Mr Marshall: There is no reasonable doubt that Bonds used PEDs Given the state of the known evidence, a jury could indeed maintain reasonable doubt about his use of illegal PEDs. THG in 2003, the handling of BALCO blood tests, etc. Sufficient direct evidence just isn’t yet available to eliminate “reasonable doubt”. Now, anyone could easily persuaded that he used them, and nearly everyone already has been. But that’s not the standard you cited. and if he (almost certainly) hadn’t paid off his trainer/pal/dealer (a felony itself) not to testify (or what do you think the guy is so willing… Read more »
Jack Marshall
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Jack Marshall
Boy, Lisa, that Barry Bonds Kool-Aid must be gooood. Please don’t put words into my mouth…I have enough of my own. I never wrote, thought, or said that defense attorneys shouldn’t give their clients the benefit of the doubt—-in fact, they are obligated to do so according to the Comments to the ABA’s Model Rules of Professional Conduct. I said that lawyers frequently use a dishonest standard to claim they don’t “know” what in fact they do “know.” It’s irrelevant to defense attorneys (regarding their clients’ guilt) anyway, because a defense attorney should defend a guilty client the same as… Read more »
Jack Marshall
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Jack Marshall

Kevin: not to parse phrases, but legal reasonable doubt is a term of art, and I was using the phrase in the vernacular. Yes, I think it is unreasonable to doubt that Bonds used steroids. Yes, I think that there is probably “reasonable doubt” enough to acquit him in court. Trial-based reasonable doubt can only take into consideration admissible evidence. Outside of a courtroom, it may be reasonable to consider the weight of other evidence that doesn’t qualify for trial use.

But it was confusing for me to use the term ambiguously.

Kevin Calhoun
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Kevin Calhoun

As Craig has pointed out with regard to Clemens, defamation cases are difficult to win under U.S. law, especially for public figures. And a loss would hardly be viewed, as Mr Marshall suggests, as a restoration of reputation, even if it occurs on technical grounds after evidence discrediting the statements of the defendants has been presented. It’s a bad option for Clemens and a bad option for Bonds.

Jack Marshall
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Jack Marshall
I respectfully disagree with Craig. It’s a bad option if discovery is going to make you look terrible, as in the case of Clemens. It’s a bad option if you don’t have nearly unlimited resources, unlike MLB superstars who have been earning 8 figure contracts for years. It’s a bad option if in fact the supposedly libelous publishing is substantially accurate, as I am convinced it is the case with Bonds, because then you’re in Oscar Wilde territory. It may even be a bad option if ignoring the supposedly libelous work will result in its claims being forgotten or marginalized,… Read more »
Kevin Calhoun
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Kevin Calhoun
Forgot to add, it’s also a very bad idea to bring matters before a civil court that are scheduled subsequently to come before a criminal court. There would be lots of ways inadvertently to improve the case of the criminal prosecution, even if the accused is entirely innocent. Why risk any of that? Mr Marshall’s views notwithstanding, I would agree with Craig that Mr Bonds and his attorneys made absolutely the right decision not to challenge the authors of Game of Shadows in a court of law, regardless of the accuracy of that book. His lack of action against them—actually… Read more »
Eddie
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Eddie
Kevin, I agree wholeheartedly that Bonds saying nothing has been the best thing to do.  Even though McGwire is not under legal scrutiny I think his withdrawal from the public eye was the best thing for him to do.  There is nothing they can say – cause really they’re in a giant PR war against professional spin doctors exacting their revenge on the superstar jocks.  They can’t win.  Rodriguez shouldn’t have said anything either.  And as you say Clemens’ decisions have been worst of all. Marion Jones won (or at least forced Conte to pay a settlement) on her defamation… Read more »
Jack Marshall
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Jack Marshall
Well, let’s see…“Game of Shadows” cites various sources to allege that Bonds used Stanozolol, “The Cream, ” “the Clear,” Trenbolone (a cattle steroid), HGH, Insulin, Testosterone decanoate, , Clomid (a drug that restores serum testosterone levels following steroid abuse), Deca-Durabolin, and Norbolethone. As with all near-certainties based on a complex mass of circumstantial evidence, any one bit can be deconstructed and questioned. This is how O.J. got acquitted, and Novitzsky is Bonds’ Mark Fermun. But as with Simpson (or Stevens—-remember him?), while any one indicia of guilt can be challenged, the odds that ALL of them are manufactured or misleading… Read more »
Kevin
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Kevin
Not sure who you’re arguing with, or on what point. My only point is that it’s not fair to judge Bonds based on his non-response to Game of Shadows. It lays out most (nearly all?) of the evidence turned up in the BALCO investigation regarding steroids and Bonds, and Bonds has wisely waited for the indictment and the trial to respond to that evidence. None of this, of course, speaks to your earlier points about the wounded integrity of baseball and Bonds’ violations of basic fairness. Although you wish to portray your views as entirely logical, that portion of them… Read more »
Jack Marshall
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Jack Marshall

Good. I’m sure everyone is grateful for THAT.

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