Lance Armstrong

I don't follow cycling too closely, but I saw that Lance Armstrong hired John Keker as his lawyer.

For what it's worth, Keker is maybe the best lawyer in the country. He ain't cheap, but I don't think Lance Armstrong needs to worry too much about legal bills.

Sonia Sotomayor

I'm making a rare reversion back into politics, because the Supreme Court is important.

Obviously, Sonia Sotomayor's ethnicity and her gender are hot topics. The way I see it, there are somewhere around 100 people in this country who are qualified for the Supreme Court at any given time. We may not agree with their decisions, but they have the training, background, and experience to be qualified. (I think that both of W's appointees, Roberts and Alito, fall into the 'qualified' category, although his first choice, Harriet Miers, definitely does not.)

So the President has to choose someone from a pool of people, all of whom have roughly the same set of qualifications. I think that it's worthwhile if the Supreme Court resembles the people of this country, and since Sotomayor comes from the set of people who are eligible due to their experience, she's a good choice.

Sonia Sotomayor is unquestionably qualified. None of the present justices ever worked as a state prosecutor, and only Alito, who worked as a federal prosecutor, has ANY criminal law experience. Hard to believe, but true. NONE of the present justices ever served as a trial judge (Souter did, but he's the one who's retiring). Since the justices regularly have to decide questions that are a trial judge's bread and butter (evidence, procedure, jury instructions, etc.), it would be worthwhile to have someone in the room who's actually had to make those kind of decisions.

So what kind of justice will she be? I don't have any idea. No one does. Souter was supposed to be a pocket conservative, and Scalia was seen as a moderate consensus builder. Who knows how someone will be in ten or twenty years? Not me.

One can demand that the President chooses someone who falls in the 'qualified' group, but outside that, you pretty much just have to hope they rule the way you want when the time comes.

Bonds Appeal

Prosecutors have appealed the judge's earlier ruling on perjury. Basically, it looks to me like the Feds don't have a case without this evidence. Anderson isn't going to testify, and if they can't introduce this evidence of Bonds' steroid use, prosecutors won't have anything to go on.

Legal Note: Normally you have to wait for a trial to be over to appeal. The idea is that if you appeal every ruling, you'd never finish the trial. Sometimes, though, you can file an interlocutory appeal, which is what this is. It's essentially a timeout in the trial.

However, this will irritate the judge, as noted in the Chronicle article. Trial was to start this week and the judge probably wants to (finally!) get rid of this case.



I predict that if the Ninth Circuit (the court that hears appeals from courts in California and other western states) doesn't allow this evidence, prosecutors will drop the case and Bonds will walk.

Bonds

The judge just tossed a lot of the evidence against Bonds for being inadmissible hearsay. For prosecutors, the problem is that Greg Anderson still isn't talking. He's the guy who could tell the story, and he's not going to say anything. (Why? Beats me.)

Is that all bad? Perjury is bad, of course, but does Bonds really deserve to go to jail? I dunno. If he does, it won't be for long. As I've said before, don't lie to the Feds.


Quick Hearsay Review: Inadmissible hearsay is evidence that exists (in this case the test results) but can't be used in court. I still remember my Evidence professor saying that hearsay is 'an out of court statement offered to prove the truth of the matter asserted.' Here, all those test results are statements that were made outside the court, and the prosecutors are trying to use them as evidence. Hearsay actually has lots of exceptions, but apparently the judge didn't think that this evidence fell within any of them. The reason the rule exists is that we would prefer that evidence be offered by a live witness. In this case that witness would be Bonds (who can't be forced to say anything due to the Fifth Amendment) or Anderson (who won't testify).

New Bonds Indictment

The feds indicted Bonds again. A copy of it is here.

To review the bidding, he was first indicted in November.

What hasn't changed is the key paragraph 9:

During the criminal investigation, evidence was obtained including positive tests for the presence of anabolic steroids and other performance enhancing substances for Bonds and other professional athletes.

Each count of the indictment points to testimony by Bonds in front of the grand jury that he didn't take steroids.

Legal sidenote: a grand jury is like a jury, except it does investigations, not trials. It's made up of ordinary people, and it sits in private, not in public. This grand jury was investigating BALCO, so it questioned all sorts of people related to that case, includikng athletes (Bonds, Tim Montgomery, Giambi, etc.)

A grand jury can give you immunity, which means that you won't be prosecuted for anything you say there, as long as you tell the truth. So if Bonds told the truth to the grand jury, even if he admitted taking steroids, he couldn't be prosecuted for it.

However, if you lie to a grand jury, they're going to come after you. Giambi's hitting prowess is vanishing, but at least he's not under criminal indictment.

Clemens!

Seriously, this Clemens story is gold.

The House Committee on Oversight and Government Reform was kind enough to lay out his various lies and half-truths in glorious detail.

Does it really make sense to go after Clemens for perjury? There are, ahem, a few more important problems out there.

As I've said before, jail ought to be for punishment, not deterrence. However, like with Martha Stewart (and Lil' Kim), there's something to be said for throwing the occasional Big Name in jail when there's a clear case of perjury. I bet there were plenty of people who paid attention when Martha Stewart was hauled off, and there would be lots of ballplayers who would sit up and take notice if Clemens went to the Big House.

Clemens

Among the *many* ludicrous things Clemens said yesterday was a bizarre discussion of his availability to George Mitchell. Someone asked him why he didn't respond to Mitchell when Mitchell asked to talk to him when he was preparing the report.

Clemens said that he didn't know that Mitchell wanted to talk with him and went on at length about how easy he is to find, emphasizing how he responded to Bud Selig when Selig asked him to be a member of the USA team for the World Baseball Classic. He blames Bud Selig for not contacting him.

Obviously this is wildly irrelevant. Although he didn't pick up the phone to call Clemens personally, Mitchell DID contact his agents on multiple occasions. I can't imagine that his agents didn't pass word along to Clemens that he was under investigation. It's ridiculous for Clemens to try to blame Mitchell or Selig.

I'd wager that his agents told him that Mitchell was asking about him, but they also advised him to ignore Mitchell, which was the same advice the players union was giving. Oops.

Clemens

This Clemens story is going to be great. He just filed a defamation lawsuit against his old trainer, Brian McNamee.

The legal case is so weak that it must be for show.

In nonlawyer talk, to win a defamation case a plaintiff has to show that the defendant made a false statement and that he (the plaintiff) suffered damages. Was McNamee's statement false? Obviously, that's the big debate--whether McNamee told the truth. Clemens would have to show that McNamee lied. Seems unlikely, considering that McNamee testified to the Feds under penalty of perjury.

Even worse for Clemens, it's harder for "public figures" to win a defamation case. The theory is that public figures voluntarily put themselves out there to be praised by people, so they also have to accept more criticism. As a public figure, Clemens will also have to show that McNamee acted with "actual malice". I don't think he can show actual malice.

McNamee made his comments under oath to the Feds. Even if McNamee is lying, and it would be crazy for him to lie under oath, it doesn't make sense that he would have actual malice to Clemens. (I suppose it's theoretically possible that he has a big grudge against Clemens and made all this up to "get" him, but that doesn't seem to be the case here.)

In any event, I'm sure the legal ridiculousness is just starting!

Bonds

Barry Bonds was indicted yesterday in federal court for lying.

It's worth noting that when he gave his grand jury testimony, he was granted immunity (paragraph 8). So if he'd told the truth, he was immune from prosecution for buying any illegal drugs/steroids/whatever. Of course, if he'd told the truth, he would be in trouble with baseball, the Giants, and perhaps to the two people he really cares about: his dad and Willie Mays.

As for the evidence, paragraph 9 is the unobtrusive hammer:

During the criminal investigation, evidence was obtained including positive tests for the presence of anabolic steroids and other performance-enhancing substances for Bonds.

So they must have found positive test results for him.

What does it mean?

I don't know. One could certainly argue that he deserves to be sentenced to community service. This isn't exactly the biggest problem facing this country right now.

On the other hand, the feds may try to make an example of him. Martha Stewart served six months in the Big House for lying about a sale of stock worth $50,000. The feds don't like it when you lie to them. If they do insist on prison, it will have to be a short term. Six months at most.

Why did he lie?

I don't know. Somehow Bonds, who grew up in wealth and privilege the rest of us can barely imagine, has managed to create a worldview where he is the persecuted one. This has been very effective for him--I think it has actually fueled much of his success on the field. But it's not so effective when one is under oath to a grand jury.

Libby

I haven't paid much attention to the Scooter Libby trial. I figured it wasn't new news--I already believed that the Administration was manipulating intelligence and engaged in character assassination.

However, I did find one thing amusing. Apparently when Cheney read Wilson's op-ed piece that started this whole thing, about Wilson's trip to Niger, Cheney wrote: "did his wife send him on a junket?" on the news clipping.

I've been to Niger. Let me assure you, that no one goes there on a junket. Aren't junkets supposed to be fun? If I ever go on a "junket", I hope it involves sitting on a hot beach in the sun with a cold fruity drink in my hand.

In Niger there's nothing to see, nothing to do. It's hot and dry. There aren't many reasons to go to Niger. And going on a junket surely ain't one of them!

It's been clear that *someone* on the inside was leaking the grand jury testimony to the Chronicle reporters in the Bonds steroids case.

Of all people, it was Victor Conte's former lawyer! His lawyer!

One question for Mr. Ellerman: "Excuse me, sir, how dumb are you?"

I'm going with 'extremely, extremely dumb'. It's pretty basic that grand jury testimony is confidential.

But it gets better. Not only did he leak the testimony, he then swore to the judge that he didn't do it. Ouch. And not to disparage the importance of this investigation, but this ain't exactly the Pentagon Papers here. I can't wait to hear his explanation for why he felt obliged to do this.

I see that he recently changed his law license to inactive status. That will shortly be changed again to "Disbarred."

First Martha Stewart. Now Lil' Kim.

The lesson: Don't Lie To The Feds.

I'm rather entertained by major league baseball players 'deciding' whether to testify before Congress.

Some good quotes:

Schilling: "It depends on what it's for."
Giambi: "I have no idea what they're trying to do. I'm just trying to play baseball."
Palmeiro: "March 17 is my wife's birthday. That should tell you right there what my answer is."
Sosa: "I don't know about that. I'll have to call my agent."

Uhhhh, guys. This isn't the local sportswriter. Their entire lives they've been accustomed to talking when they want, and not talking when they don't want to. They can tell half-truths, and evade or ignore the question whenever they want to. But this game is not being played on their terms. Sportswriters don't have the power of the subpoena.

You can't just "decide" whether to testify if Congress wants you. If they're stupid enough not to attend, I fully expect them to receive subpoenas, and then they won't have any choice. Steroids are a great issue for members of Congress. It's high visibility, so they'll get their names in the press. There is no lobby out there fighting for steroids, so they're not going to antagonize anybody. It's bipartisan. It plays great in the heartland. Everybody understands it. There are plenty of opportunities for practiced one-liners that might get picked up in USA Today. And the baseball players aren't going to do themselves any favors by hemming and hawing. Personally, this is the rare time that I think Congress is on the right track. Make those guys raise their right hands and get the truth out there!

What they should do, of course, it just come clean. Apologize, maybe tear up a little, and swear a solemn oath to the American People that they'll never do it again. Perhaps mention The Lord, and how much He means to them (connection to steroids: uncertain, but the American people love mentions of The Lord). This story would be old news quickly. But if they fight it, it's just going to drag on and on. There will be editorials in the New York Times and the Wall Street Journal. Talking heads will cover the whole thing on Court TV. There will be Commissions, and much discussion about Baseball History and the Sacred nature of the game. And there will be discussion of The Children.

Well maybe Martha Stewart is heading for the pokey after all. Generally, I don't think that sending people to prison does much to prevent other crimes. Jailtime should be predicated on punishment, not deterrence.

BUT, I think that white collar crime is an exception. Rich executives really really don't want to go to jail and they're probably knowledgeable about both the law they'd be breaking and celebrity cases like Stewart's. So I think it's good for society to throw the occasional Martha Stewart (and Sam Waksal--who was far stupider and has a good six more years left to think about it) in jail, even if it's unpleasant for her. That being said, I don't think there's any reason to put her away for long. Waksal's crime was far worse. Seems to me that six months-one year is about right. Just enough to send a loud message.