- Lester Munson, Legal Analyst
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Convicted of giving evasive and misleading testimony to the federal grand jury that was investigating steroid use by elite athletes, Barry Bonds was sentenced Friday to 30 days of home confinement and two years of probation. The light sentence raises questions about the value of the investigation, the work of the prosecutors and the effect of the outcome on Bonds' legacy.
Some of the questions and their answers:
Q: The investigation and the prosecution went on for eight years. Why would the U.S. government spend eight years on a case that results in only 30 days of home confinement?
A: The investigation into Bonds and BALCO, the lab that produced and sold undetectable designer steroids, is the most important investigation ever undertaken into the use of performance-enhancing drugs. More than a dozen BALCO officials, scientists, coaches and athletes were convicted of felonies. The investigation prompted action in the Congress and ignited major changes in Major League Baseball's approach to these issues.
Home confinement for Bonds is not an accurate measure of the impact of the investigation. The real measure of the government's prodigious effort is its enormous impact on the sports industry and on the use of these drugs.
Q: Isn't a sentence of 30 days of home confinement a sign that the agents and the prosecutors failed in their pursuit of Bonds?
A: No. His sentence is not the result of any failures by federal agents and prosecutors.
There is no doubt that Bonds used steroids, and there is no doubt that he lied to the grand jury about his use. The problem that led to the conviction on only one count and a deadlocked jury on three counts of perjury was not the quality of the work of the agents and prosecutors. The problem was the refusal of Bonds' personal trainer, Greg Anderson, to testify against him.
For reasons that are not yet known, Anderson went to jail twice instead of offering evidence against Bonds. Anderson's refusal to testify prevented the prosecutors from connecting Bonds to positive drug tests and other compelling evidence of Bonds' use of steroids. If Anderson had testified, Bonds would have been convicted quickly on all four charges.
In the face of Anderson's conduct, the prosecutors -- who occasionally stumbled -- rallied brilliantly at the conclusion of the Bonds trial and obtained the conviction for obstruction of justice and were one vote shy of a conviction for perjury. This outcome, even with the light sentence, is a triumph for investigative agent Jeff Novitzky and prosecutors Jeff Nedrow and Matt Parrella. The government will not be asking a higher court to change this outcome. It is Bonds who will be filing the appeal to the U.S. Court of Appeals for the Ninth Circuit.
Q: The jury concluded that Bonds obstructed the investigation of the grand jury. Why wouldn't the judge support the crime-fighting efforts of the grand jury by sentencing Bonds to the penitentiary?
A: The federal judge who presided over the Bonds trial is Susan Illston. She is a San Francisco Democrat and a bit of an enigma.
Throughout the BALCO investigation, she made a series of decisions that were difficult to explain. Early in the prosecutions, when she was sentencing Greg Anderson on perjury charges, Anderson admitted under oath that he had sold steroids to numerous elite athletes. At that point, Illston could have, and should have, asked Anderson to name the athletes. She, however, did not ask him to name the athletes, passing up a chance to do something important for the sports industry and the nation.
It was one of many decisions made in the course of the BALCO prosecutions that indicated Judge Illston just didn't get it. On other occasions, she demonstrated her impatience with and scorn for the efforts of prosecutors Nedrow and Parrella. Without a word of objection from the Bonds legal team, she frequently interrupted Nedrow in his questioning of witnesses and criticized him in front of the jury.
It was clear throughout the Bonds trial that Illston would rather be doing something else. The federal sentencing guidelines suggest a term of 15 months in prison. Illston ignored the guidelines and told Bonds he would be confined for a month in his mansion.
Q: How does the home confinement sentence for Bonds compare with other sentences in the BALCO investigation?
A: Like many of the decisions made by Illston, the sentence is puzzling.
When Victor Conte, the founder and CEO of BALCO, admitted guilt, Illston sentenced him to only three months of incarceration. When Greg Anderson, a steroids dealer who sold to numerous athletes, admitted guilt, she sentenced him to only three months. Illston's longest sentence went to Troy Ellerman, a lawyer who was not involved in BALCO, who never sold any drugs but leaked grand jury testimony. Illston sent Ellerman to the penitentiary for two years.
Cyclist Tammy Thomas was convicted of a charge similar to Bonds. After noting that Thomas had lost everything and faced health issues, Illston sentenced her to what Illston thought was a gentle sentence -- six months of home confinement. Bonds is a man of considerable wealth who is in excellent health. Instead of sentencing him to more home confinement than Thomas, Illston sentenced him to less time at home. It is difficult to put Illston's sentences into any consistent pattern.
Q: What happens now?
A: Bonds and his legal team will appeal his conviction. The government will maintain its option to re-try Bonds on the three perjury charges on which the jury deadlocked. The appeal will push the Bonds case into its ninth and 10th years before a decision is reached.
The Ninth Circuit court is the slowest of the nation's federal reviewing courts. Bonds will spend hundreds of thousands of dollars on the appeal. During the trial, he had a team of seven lawyers, including five from the Skadden Arps law firm, the most expensive lawyers in America.
If he were to accept the 30 days of home confinement, the government would probably drop the remaining charges, bringing the prosecution to an end. The Bonds lawyers will make the same arguments they made to Illston when they tried to set aside the jury's verdict. The argument did not work with Illston, and they are not likely to work with the higher court. If Bonds loses the appeal, he may then face another trial on the three charges.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.