Commentary

Answers to key questions as Bonds begins legal journey

Originally Published: December 6, 2007
By Mark Fainaru-Wada and T. J. Quinn | ESPN.com

When Barry Bonds walks into the Phillip Burton Federal Building in San Francisco on Friday, it will be only the beginning of an unpredictable legal odyssey. A few days after the fourth anniversary of his BALCO grand jury testimony, Bonds will surrender to U.S. marshals, go through the bureaucratic rigmarole of being arrested and later appear in court to enter a plea on four counts of perjury and one of obstructing justice.

Outside the courtroom and all over the United States, however, debate and speculation about his fate will rage as it has since he was pulled into the biggest steroid scandal in sports history. There are those who decry the government "witch hunt" and those who say Bonds is getting what he deserves, but there remain many unknowns about the facts of the case. Those will emerge in the coming weeks and months, but as the United States versus Barry Lamar Bonds begins, here are answers to some of the questions that have been batted about during the past few weeks. What is important to remember is that, like Bonds himself, we don't know what we don't know about the government's case.

Barry Bonds wasn't the only athlete to use steroids, so why are the feds going after only him?

The short answer is: They aren't. There are two false premises to that question: First, they aren't going after him for using steroids, they are going after him for allegedly lying about it before a federal grand jury. Bonds was charged with four counts of perjury and one of obstructing justice, not drug use. As with Martha Stewart and other high-profile defendants, the government seems determined to make an example of Bonds.

When Bonds testified before the BALCO grand jury in December 2003, he was given immunity from prosecution, meaning he could have spilled his guts about steroid use the way Jason Giambi did and not faced any punishment. The feds wanted Bay Area Laboratory Co-Operative founder Victor Conte and Bonds' longtime friend and trainer Greg Anderson, not Bonds.

But Bonds testified he never knowingly took steroids or injected them. He said he thought "the cream" and "the clear" were benign substances, not two steroids designed to avoid detection. The government believed he was lying and soon began collecting evidence to prove its case.

Second, Bonds isn't their only target. Fallen track legend Marion Jones pleaded guilty in October to lying to federal investigators after she was targeted for prosecution. Her former coach Trevor Graham, the original BALCO whistle-blower, is awaiting trial on charges of obstructing a federal investigation, and former cyclist Tammy Thomas is awaiting trial on perjury charges.

Why did it take so long for the government to charge Bonds?

There has been considerable discussion about this, but really, the answer appears far less sinister than some would like to believe. Some have suggested the government must have found last-minute witnesses who convinced the U.S. attorney to seek charges or that the case involving former Mets clubhouse attendant Kirk Radomski has played a role. But in interviews with sources familiar with the government's case, those don't appear to be issues at all.

First and foremost, the feds work slowly. The only clock was the statute of limitations, which is five years in a federal perjury case. The government had until December 2008 to bring charges.

Second, the athletes were not initially targets of the BALCO probe, which started in the summer of 2002 after local agencies were tipped off about the distribution of performance-enhancing drugs to elite athletes, according to court records. Prosecutors first went after the dealers, ultimately indicting four men in 2004, and plea deals were not struck until 2005. Next, the focus shifted to any witnesses (athletes, coaches, trainers) the government believed had lied and essentially obstructed justice in the case. Bonds was on that list, but as mentioned above, he was not the only one.

Third, the case dragged for internal reasons. Among those, the U.S. attorney for the Northern District of California, Kevin Ryan, was forced from office in February, creating uncertainty in the office. At the same time, then-U.S. Attorney General Alberto Gonzalez came under fire and ultimately left his post, presenting an additional leadership vacuum.

Fourth, the feds had other cases to pursue. BALCO wasn't the only investigation based in the busy Northern District of California.

And while all of this was going on, the government was willing to take whatever time it needed to coax Anderson to testify about his client. Anderson refused, and he ultimately languished in jail for 413 days on contempt charges.

"There was nothing unusual about the timing," said Mark Corallo, a former Justice Department official with knowledge of the BALCO case.

How significant is it that the government says it has positive tests demonstrating Bonds used steroids?

It's hard to say, but it's possible it isn't significant at all. Certainly the government will need to prove Bonds actually used steroids to make its case, but there appears to be ample evidence of that in the form of documents, testimony, statements to federal investigators and even an audio recording in which Anderson discusses providing Bonds with a steroid designed to evade detection.

So, the focus on the importance of the positive tests and whether they could be problematic because of "chain-of-custody" issues seems to be a red herring. The case will not be about proving Bonds used, but rather about trying to prove he knew what he was using and that he injected some of the drugs, which he explicitly denied doing. If it turns out the government can prove Bonds was aware of the test results, that could be compelling evidence he knew what he was doing.

Is this case definitely going to trial?

There has been rampant speculation that because Bonds' criminal attorney Michael Rains has blasted the government repeatedly, there is no way Bonds will agree to a plea bargain. As Bonds looks to expand his legal team to include a veteran of the federal criminal justice system -- he reportedly hired Cristina Arguedas and Allan Ruby, both of whom are familiar with federal cases, Thursday night -- he still hasn't seen the evidence against him, however. Whatever the government has probably will be turned over within the coming week as part of the discovery process. When that happens, Team Bonds might decide the evidence is overwhelming and he would be better off settling. Or Bonds and his team could decide the government's case is flimsy and worth fighting in court.

Whatever the case, however, Bonds is looking at a maximum of 30 months, not 30 years. Sentencing guidelines allow for 30 years, but that would apply to Bonds only if he had a long criminal history, which he does not.

Who are the witnesses?

First of all, sticking to the "we don't know what we don't know" guidelines, there might be witnesses in this case who have not been identified publicly, and sources close to the case have suggested that there are. But among the known witnesses in the case will be Arthur Ting, Bonds' personal physician; Kimberly Bell, Bonds' former girlfriend; and Steve Hoskins, a former friend and business partner of Bonds' who claims to have first-hand knowledge of Bonds' steroid use.

Former BALCO vice president James Valente, who pleaded guilty to his part in the steroid distribution scandal, also is expected to be called. In addition, the government is expected to call several players to testify, including former BALCO clients Jason Giambi, Gary Sheffield and Benito Santiago. At minimum, each player could be asked about his dealings with the lab and what he was told about the substances he took.

Mark Fainaru-Wada, co-author of "Game of Shadows," and T. J. Quinn are reporters for ESPN. Fainaru-Wada can be reached at markfwespn@gmail.com. Quinn can be reached at tjquinn31@yahoo.com.