I don’t know why the government is prosecuting Barry Bonds. It seems like a waste of limited resources. Yes, I believe that the former big-league slugger took steroids. I also think it is likely he lied to a grand jury and to federal agents. But in the larger scheme of things, does this really matter? Our government lies all the time, routinely engaging in trickery and deception in the course of its investigations. Our courts condone these lies because strategic uses of deception serve legitimate law-enforcement interests; why does the government get to lie while we the people are held to a higher standard?
This week’s issue of The New Yorker features a piece on the Bonds trial: "King of Walks: Barry Bonds and the doping scandal," March 28, 2011.Trial begins this week. Bonds is charged with lying to a federal grand jury investigating whether he used performance-enhancing steroids. Read the New Yorker essay and ask yourself who looks like the bigger creep: Barry Bonds, or the federal prosecutor, Jeff Novitzsky, who apparently gloats over being called the "Eliot Ness of steroids"? Novitsky comes across as the bitter wannabe, the small-time collegiate athlete – he played basketball in junior college -- who won’t rest until all the world is compressed into the same two-dimensional mold of mediocrity his career typified.
We are a drug-saturated society. I start the day with a lift provided by caffeine. At social events, I take the edge of my anxiety with Scotch or gin, that’s either Dewars or Tanquery, thank you. These are my drugs of choice. I know plenty of people who pump themselves full of nicotine. Many lives are lost or ruined or lost as a result of the misuse of alcohol and nicotine. We all find our way through the day as best we can.
When athletes turn to the use of performance enhancing drugs, we call it a crime. Yet, as Jose Canseco wrote in 2005 : "Steroids are the future. By the time my eight-year-old daughter ... has graduated from high school, a majority of all professional athletes – in all sports – will be taking steroids. And believe it or not, that’s good news."
I don’t know whether I agree with Canseco about the emergence of steroids as a good thing. I simply accept the inevitable: we demand entertainment by our twentieth century gladiators. When a baseball player swings for the fences, or a football player comes barreling down the field, ball in hand, I care far less for the purity of the athlete’s blood stream than I do for the spectacle of it all. The government’s bearing down on the thoroughbreds we root for is unseemly. Do we really care if Lance Armstrong used steroids? And yet a federal grand jury is now rumored to be trawling through all the government can find about the cyclist.
We need heroes. Sports figures serve that need. The roar of a crowd at an athletic event is an experience as close as many of us come to something like transcendence. If we are deceived into believing these gods and goddesses dance on their fields of glory filled with nothing but ambrosia, what’s the harm?
I can hear the counter argument. We have an obligation to the truth. Transcendence and the need for some collective vision of the good larger than our individual interests can best be served by being truthful to the government. But that argument ignores the insipid reality that our courts permit the government to lie to us, to withhold information from us, to treat us as the means to ends the government believes we ought to serve. A government, and its agents, that routinely uses deceit forfeits our respect. When a citizen can be prosecuted for using the same tools the government uses – strategic deceit - the game is far from ennobling.
I am not much of a baseball fan, and I don’t particularly care for Barry Bonds. But this week I am rooting for him as I never did when he was on the playing field. My government is prosecuting him for reasons unclear to me. Yes, Bonds probably lied under oath; he would have been wiser simply to plead the Fifth Amendment. But how many lies were told to witnesses in the investigation of Bonds? I hope the jury returns a not guilty verdict.
This prosecution is a waste of time. What next? Actresses targeted for dangerous breast implants? How about prosecuting federal agents for the deceit they uses as a routine part of their employment?
What do you do when a judge won’t sign a warrant? If you are a person accused, you breath a sigh of relief and thank the heavens for an independent judiciary. But what if you are a police officer, and the judge refuses to bless your handiwork? What happens then? In Connecticut, you threaten to arrest the judge for hindering prosecution.
Bantam Superior Court Judge Corinne Klatt is accused of coercion and "a violation of the criminal law" by a member of the Connecticut State Police because she refused to sign an arrest warrant prepared by the trooper. Police state anyone? Now even the judiciary is to be arrested if it doesn’t do the bidding of a cop on a toot
Details are a little hazy, but it appears that Connecticut State Trooper Mark Laurento filled out a warrant for the arrest of a man for assault. The would-be victim was apparently communicating with the potential arrestee’s former girlfriend. When the judge read the warrant, something did not set right. From where she sat, it looked as though the girlfriend, too, should be arrested. So the judge told the trooper she would not sign the warrant for the man unless the officer also submitted a warrant for the arrest of the girlfriend.
An arrest warrant is simply a device that recites the reasons a police officer has for believing that a crime was committed. The legal standard is a step or two from the Quija Board – an office needs mere probable cause, some reasonable basis to believe, that the law was broken. This is a standard only slightly more demanding that the standard necessary for an investigatory stop, the infamous articulable suspicion standard that permits an officer to briefly detain a person if he can put into words his reasons for suspicion. (This is suppose to be better than mere gut-feelings or hunches, but, as every criminal defense lawyer knows, only turnips are incapable of putting their hunches into words.)
I am pleasantly surprised by Judge Klatt’s boldness in refusing to sign the warrant in this case. Judges often act as though they were semi-blind when it comes to quality control. Bring them a warrant making out the broadest outlines of the most significant crime, and they seem to sign almost as quickly as you can utter "all rise." Judge Klatt is a former prosecutor from the City of Waterbury, where we went toe to toe from time to time. I recall a memorable trial a decade or so in which she prosecuted two clients of mine for assaulting police officers in a bar fight. It was a not guilty verdict I still cherish. I still think of her as a prosecutor, despite the black robe she now wears.
Defendants seeking to raise selective prosecution claims almost always fail. I don’t recall how many times I have had to tell someone the equivalent of the following: Yes, you were driving 80 miles per hour in a 55 mile per hour zone. Others were going faster than you. It is no defense to say that because others were breaking the law and only you were arrested life is unfair. You were still breaking the law.
It appears that something like this is just what Judge Klatt saw in the warrant presented to her by the eager beaver Trooper. Rather than doing what most judges and prosecutors do, which is signing off on a warrant and then letting it all get sorted out in the criminal courts, she asked some basic questions about fairness before signing the warrant. When she did not like the answer she got, she did not sign the warrant. That’s what I call commendable judicial independence.
At the low end of the penal code, where penalties are measured in months rather than decades, the first person in a dispute to darken the police station’s door is often called the victim. Yet more often not, these sorts of mundane conflicts are the result of a conflict involving two parties, both of whom arguably have broken the law. Judge Klatt apparently saw a mad-dash to the police station by two folks equally culpable. Rather than letting one of them claim the victor’s prize and the victim’s crown, she stopped the silliness in its tracks. Good for her.
Shame on the trooper who thinks it is a crime to say no to him. It is a good thing for him that intemperance is not a crime. I’d sign a warrant for his arrest on such charges.