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BALCO?d: How Will the Tammy Thomas Conviction Affect Barry Bonds and Future Steroids Cases?

By Charles J. Ochab

I. Introduction

Barry Bonds? publicity may arise from his feats on the baseball diamond as Major League Baseball?s (?MLB?) all-time home run king, or it may arise from allegations that he took anabolic steroids to gain an edge on the playing field.[i] His negative publicity has recently subsided, primarily because he is not currently signed to a contract by an MLB franchise, and the steroids controversy lost momentum. However, Bonds? name may re-enter the public consciousness with the recent conviction of Tammy Thomas for perjury and obstruction of justice.[ii] Thomas denied use of steroids, like many athletes before her, that have been in the position of being accused of the same.[iii] However, she was convicted under evidence that clearly indicated that she had used anabolic steroids.[iv] The result of this case may have a significant effect on any future litigation involving Bonds, and further-reaching implications on future steroids criminal cases.

II. Background

Tammy Thomas was a U.S. Olympic cyclist who failed two drug tests by testing positive for an anabolic steroid in 2002.[v] The U.S. Anti-Doping Agency subsequently slapped her with a lifetime ban.[vi] In 2003, Thomas testified to a federal grand jury regarding any possible connection she may have had with the inventor of Bay Area Laboratory Co-Operative (?BALCO?).[vii] At the time, BALCO under investigation for illegal distribution of steroids such as tetrahydrogestinone (?THG?), which was designed to avoid current testing measures.[viii] The drug was connected to other prominent athletes such as Gary Sheffield, Marion Jones and most notably, Barry Bonds.[ix] The government was more concerned with BALCO than they were with Thomas, and in exchange for her testimony, they promised not to use any of her testimony in a criminal case against her.[x] Thomas? testimony was not free from perjury charges.[xi] Ms. Thomas did not live up to her end of the bargain and denied using steroids, despite a plethora of evidence indicating the contrary.[xii] Thomas was convicted of perjury and obstruction of justice charges, and will spend between six and 18 months in prison.[xiii]

How does this relate to Bonds? If Bonds goes to trial, his case will focus on the same charges of obstruction of justice and perjury.[xiv] In 2003, Bonds testified to a federal grand jury and stated that he did not use steroids.[xv] In 2007, Bonds was charged with perjury and obstruction of justice, with prosecutors alleging that he had lied 19 times under oath during his grand jury testimony.[xvi]

III. Legal Issue

Thomas? conviction may not be the slam dunk that some feel will result in an analogous Bonds conviction.[xvii] In order for a trial to commence, prosecutors must allege new charges against Bonds. The judge presiding over the case stated that the charges against Bonds were improperly duplicitous, because prosecutors had unlawfully charged him with multiple counts within a single count.[xviii] Additionally, while Thomas was convicted and both Thomas and Bonds have connections to BALCO, they do not have the same connections.[xix] While Thomas knew of the nature of the steroids that she took, Bonds trusted what his personal trainer Greg Anderson gave him, and claimed he reasonably assumed it was flaxseed oil or a similar legal substance.[xx] In a perjury trial, the prosecution must show that Bonds lied under oath, and that he did so knowingly, in response to an unambiguous question.[xxi] A simple misunderstanding would not be enough to prove perjury.

While the Thomas case contained hard evidence that indicated she took steroids, Bonds has claimed a misunderstanding and currently, no witness is available to testify against him to assert that he knowingly took steroids.[xxii] Thomas failed two drug tests, while Bonds has not failed a sanctioned drug test up to this point.[xxiii] The suppliers of Thomas? drugs testified against her, while Bonds? trainer has been jailed several times for refusing to testify against his longtime friend.[xxiv] Additionally, Thomas? case may assist Bonds? defense lawyers to prepare for any new charges. They now have an idea of what the prosecution will bring against Bonds, as two of his attorneys were present for the government?s primary steroids witness testimony in the Thomas case.[xxv]

IV. Conclusion

While it may appear that the conviction of U.S. cyclist Thomas for perjury and obstruction of justice would certainly lead to a conviction against Bonds, the case is not so clear cut. The prosecution will need to find a witness who can testify to Bonds taking illegal steroids. The most obvious witness would be the aforementioned Anderson, but thus far, he has refused to testify.[xxvi] In order to prove perjury, the prosecution will also have to show that Bonds was knowingly taking steroids.

The charges may be the same, but the evidence is far from that; Bonds has not failed a drug test and has not had a supplier testify against him, unlike Thomas. Perhaps the government has more concrete evidence against Bonds than they are letting on; if not, the newly minted homerun king could draw another walk.  In any event, while Bonds may not necessarily be convicted, the Thomas case should open the eyes of several athletes who may be charged with perjury or obstruction of justice in connection with steroids.

Full post as published by The Journal of the Business Law Society on April 21, 2008 (boomark / email).