Bonds testified before the grand jury under a grant of immunity, meaning that anything that he said could not be used against him as long as he told the truth. Once immunity is granted a witness has two choices. One is to testify. The other is to do what Bond’s friend and trainer, Greg Anderson did and that is to be found in contempt and be incarcerated for the length of the grand jury session. But Bonds, like so many other defendants/witness, thought that he could outsmart the United States Attorney by giving evasive answers. As a result, pending appeal, he is now a convicted felon. He is lucky not to be spending time in prison. The U. S. Attorney reccommended fiften months in prison but United States District Judge Susan Illston sentenced him as was reccommended by the Probation Department to probation and home arrest in recognition of his clean criminal record and his charitable work in the community.

It makes no sense to lie before the grand jury or in any other official inquiry. It makes much more sense to refuse to answer question or answer, “I don’t remember.” In either case you preserve your Fifth Amendment privilege without risking a felony conviction.

The indictment alleged that the obstruction was committed by evasive answers before the Grand Jury. Bond’s legal team has asked Judge Illston to throw out the conviction. Certainly a conviction for being evasive is a lot weaker without any convictions for perjury. The perjury allegations were that Bonds lied before the Grand Jury. The Grand Jury was investigating BALCO for allegedly providing steroids to sports figures including Bonds. ¹

If Illston does not throw out the conviction there is sure to be an appeal. One question on appeal will probably be the question of whether charging evasive answers meets the preciseness required by due process. Due process requires that charges in a criminal indictment be precise enough to allow a defendant to fight the case and to allow a future court to determine the nature of the charges in order to prevent double jeopardy. The term evasiveness is so vague that it may not meet due process requirements.

Another problem, and this one may face Judge Illston in determining whether to void the conviction, is that the obstruction count charged not only that Bonds was evasive before the jury but that he lied to the jury. Since the jury hung on the perjury charges it is difficult to see how they can convict him on the obstruction count.

In any case its not over until its over and that will be no time soon.

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In 1977 California adopted a sentencing scheme in which most prisoners were sentenced to determinate terms. Most prisoners upon sentencing knew when they would be released. But some prisoners, usually those with more severe sentences would receive an in determinate sentence where they might be sentenced, for example, to fifteen or twenty-five years to life.

The Board of Parole Hearings could deny parole by merely saying that the original crime, often occurring 20 years before the parole hearing, was heinous. The governor would then agree that it was heinous and the courts would not touch the decision. This would be repeated at annual parole hearing and the defendant would die in prison. In 2006, for example, according to an article in the Yale law and Policy Review the Board of Prison Hearings rejected 99.5 per cent of the applicants for parole. During the four years that former Governor Gray Davis was governor only five inmates sentenced to indeterminate sentences were paroled. It has improved somewhat under the current governor, Arnold Schwarzenegger. Forty paroles were granted in his first five years. But the number is still minuscule, with approximately 34,000 inmates sentenced to indeterminate terms in California.

In In re Lawrence the California Supreme Court held that the primary factor in deciding whether to release an eligible lifer on parole is the danger that the inmate presents to society. It is no longer possible to say that an inmate committed a heinous crime twenty years ago and throw away the key. The courts are beginning to recognize that the norm must be that the Board of Parole Hearings should set dates for the release of parolees unless their is a reason to believe that they will be a danger to society upon release. The sole reason for denying parole cannot be the egregious nature of the committing offense. Each factor used in denying parole must be considered in light of its effect upon the dangerousness to the public of the inmate if he/she is released.

Within the past week writs of habeas corpus citing Lawence have been decided in the Court of Appeal. In In re Palermo the Third Appellate District granted the inmate’s writ of habeas corpus and ordered a new hearing for him. Palermo had been convicted of the 1987 murder of his ex girlfriend. He shot her with what he thought was an unloaded gun through an open bathroom door. He was sentenced to fifteen years to life. At his third parole hearing in 2006 the Board of Prison hearings denied his parole. The hearing officers gave three reasons: 1) the nature of the committing offense, 2) his disciplinary history, and 3) a lack of insight. The San Joaquin superior Court denied his writ of habeas corpus but the Court of Appeal granted the writ. It found that the Board wrongly considered the committing offense to be the major reason to deny parole. As to his disciplinary history, he had only three disciplinary actions in nearly 20 years of incarceration and they were for non-violent acts. As to the degree of insight it is true that he feels that he committed manslaughter and not second degree murder but the facts are arguable and he has consistently showed signs of remorse.

On the other hand the First District Court of Appeal denied a writ of habeas corpus in In re Gregory Dwayne Reed. The Court denied the writ of habeas corpus finding the inmate to be a danger to society. Reed was sentenced to twenty=-six years to life for the 1984 felony-murder of a john during a robbery. Reed and his brother observed a prostitute flag down a john. While the couple were having sex in the john’s car, Reed’s brother opened up the door, pointed a gun at the victim and ordered him to give him money. When the victim claimed he did not have any money the prostitute offered Reed the twenty dollars she had received from the victim. He was unable to grab it and his brother shot the victim in the heart, killing him. While in prison he received 11 form CDC 115 disciplinary reports, the most recent in 1995. Form 115 reports are for events that are believed to be violation of law or in any case are not minor. He also received 19 form CDC 128-A reports for minor misconduct. At his first parole hearing in 2001 the Board found him unsuitable for parole and gave him a three year denial. At the second hearing in 2005 the Board gave him a one year denial and he was told by one of the hearing officers to “remain disciplinary free, not even a 128.” But in April 2005 he received a 128-A for leaving work early. At his June 2006 hearing he admitted he should have gotten approval from his supervisor before leaving work early.He was again found unsuitable and the current writ followed. The Court noted that he was no longer that he had a favorable psychological review and that he had completed a number of classes while incarcerated. But the appellate court found that Reed’s inability to remain discipline free, after he had been warned, reflected poorly on his ability to comply with the terms of parole and the law if he was released and therefore it denied his writ.

While there has been a change in the way the courts look at parole hearings in the past six months, it is unclear what the future holds. What is clear is that important decisions affecting the future of parole are being made in the Court of Appeals and that these decisions will affect the release of many people in the future as well as the crowded conditions in the prisons.

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Another new witness for the government is Bond’s long time friend and personal assistant, Kathy Hoskins. Hoskins presumably will testify that she saw Bonds receive an injection from Anderson. While there is no evidence that the injection was steroids, Bonds testified before the Grand Jury that that he did not receive an injection from Anderson.

As to what effect this will have on baseball, we will leave to the sports writers.

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The evidence released by the government includes:

1)positive tests on a urine sample collection by Major League Baseball on a sample given by Bonds in 2003
2)Three private tests done at the direction of BALCO in 2000 and 2001
3)A secret 2003 tape recording of Greg Anderson, Bonds’ friend and trainer in which he describes Bonds’ use of steroids
4)Testimony by former baseball players Jason Giambi, Jeremy Giambi, Benito Santiago,Bobby Estalella and Marvin Barnard that they used banned drugs provided by BALCO and that they kept track of the drugs they used on a calendar similar to one that was seized showing Bonds steroid use.

But just because the government has the evidence it does not mean that all of it is admissible at trial. Some of it is hearsay. Some of the evidence requires that prior to its admission the government must lay a foundation to show its credibility. This is done by the introduction of evidence by a witness with first hand information about the evidence. In some cases, to lay the foundation, the government needs the testimony of Greg Anderson. Anderson is Bonds long time friend and trainer. He is under subpoena for the trial but in the past he has chosen to go to jail instead of testifying against Bonds. He spent over a year in jail rather than testify against Bonds and he may be sent back to jail if he refuses to testify.
In any case the decision on whether the government’s evidence is admissible will be made by U. S. District Judge Susan Illston who will preside over the trial.

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