criminal law: November 2007 Archives

November 29, 2007

Let's Give Barry Bonds the Benefit of the Doubt

I'm glad that Barry is finally getting his trial. Let me start by saying I'm a Barry Bonds fan. Over the past couple of years I've hated watching Barry being booed in stadium after stadium, each filled to the brim with screaming fans hoping, in spite of the boos, to see him hit a home run. I'm therefore actually happy that Barry was finally indicted and is headed for a trial in which he can confront his accusers and establish his innocence in a forum dedicated to finding the truth. Or so I hope.

An acquittal on the charges against him won't necessarily restore Barry's good name. If he's acquitted, Barry's standing in the community--baseball and otherwise may be resurrected. I say "may" because of the obvious fact that acquittals don't necessarily change people's minds about what they think they know. Remember the O.J. double-murder trial? A jury acquitted O.J. pretty darn quick--and vast numbers of (mostly white) people decided that the jury was either reckless or stupid and continue to believe in his guilt.

What you think you know might not be how it really is. You may be quietly snickering at my reference to Barry's possible innocence. It's obvious, isn't it, that Barry lied to the grand jury when he said he didn't knowingly use steroids. I mean, look at the guy, all bulked up. Give me a break. Barry should cop a plea, do his time, and retire to a world marred only by a flood of asterisks accompanying his many marvelous records. Not so fast.

The case against Barry has not yet been challenged in a court of law. The case against Barry--largely built by the media--depends heavily on testimony and evidence from a 2002-2003 grand jury proceeding. In our system of justice, evidence introduced in a grand jury proceeding is supposed to remain secret, at least until an indictment issues. In this case, the testimony was leaked early. Journalists and sports pundits alike treated the testimony as the truth incarnate. Barry has been tried in the media and we, the public have adjudged him guilty --most unfairly.

Grand jury indictments are not evidence of guilt. We should never, ever, treat a grand jury indictment--or the testimony on which it's based--as evidence of guilt. In grand jury proceedings, the prosecutor orchestrates the testimony and evidence for the sole purpose of obtaining indictments. The witnesses who the prosecutor brings in to testify are not subjected to cross-examination. In fact, the suspect is not even present and there isn't even a defense. It's the prosecutor's show all the way, with predictable results: As the old saying goes, "the grand jury will indict a whole ham sandwich if given half a chance."

All our rules of fairness preclude pre-judging Barry. If we really believe in due process, in the right to confront our accusers, and in the presumption of innocence, we would refrain from judging Barry unless or until his guilt is proven "beyond a reasonable doubt " in a court of law. If we really believe in the Golden Rule--Do Unto Others As You Would Have Them Do Unto You--we would remember how it feels to be unjustly accused. We would say to our family, friends and associates, "Hey, wait until the trial, give Barry the benefit of the doubt."

Why we give some people the benefit of the doubt. All of this leads me to wonder why we give some people the benefit of the doubt and not others. It probably boils down to trust. We tend to trust people of our own ilk--our religion, our race, our family. But maybe we should strive to move beyond our genetic and cultural predispositions--just because it's the right thing to do. Barry is a baseball immortal, and in my mind that fact alone justifies giving him the benefit of the doubt. Plus, I know from my legal career just how unreliable un-confronted testimony and unexamined evidence can be. And I would like to believe I'm the kind of a person who will give just about anyone the benefit of the doubt since the opposite approach feels, well, uncivilized.