Fire Jim Tracy

Friday, December 03, 2004

THIS JUST IN!

I'm fascinated by the debate over on Dodger Thoughts, over steroids in general and Barry Bonds in particular. I'd participate there, but my sharp knives are out, and I told Jon I would keep them off his site.

The Barry Times reports that handicapped children rise and walk thanks to high smog levels in the Los Angeles Basin!

In an unrelated article, Bonds was arraigned for murder after spraying a Moraga home with an Uzi submachine gun, killing the family inside. When asked to explain his actions, Bonds stated that he didn't "knowingly" do it, because he never went inside to look.

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Barry has actually used this word publicly when responding to questions, which was a clear sign to anyone with a brain that he was setting up this defense. The problem is that it won't work, certainly not in the public eye, and very likely not in court. There are a few statutes that limit the definition of "knowingly" to "actual knowledge" or "knowledge in fact," but they are relatively rare and though I have not read the statute that deals with ingestion of controlled substances, I suspect that it is not one of them. Instead, knowledge has consistently been read by courts, without specific suggestion from the Legislature to the otherwise, to include "know or should have known" or, to put a slightly different spin on it, to include "willful blindness." Both put on the accused a burden to show some sort of reasonable investigation into the facts. The classic Law School hypothetical on this is the mule who is asked to drive a car from, say, Seattle to San Francisco, drop the car off somewhere, then fly back. If done for a legitimate purpose, mistake of fact (the fact that you didn't know there were drugs in the trunk) may be a defense. If done for 250 dollars with "no questions asked," the jury is allowed to consider whether you didn't know only because you didn't want to know. In any event, the idea that Bonds didn't have actual knowledge in this situation is not credible. And anyone credulous enough to believe it has very little credibility left to discuss this particular issue.

I am deeply, deeply skeptical (as I have suggeted) of any sort of suggestion that steroid use is not harmful to the body. That does not pass the smell test. In any event, this dodges the issue. Even if you admit, that, at best, nobody knows (and I don't admit that), the "choice" by a handful of players to take steroids, coerces everyone else to take steroids to even up. I suspect there are players in MLB right now who use them who would gladly quit the arms race if there was an intervention. See, it's not Barry hurting his "own body," as the cliche goes; it's Barry forcing virtually all of MLB to keep up, whether or not they want to participate.

Jeremy Giambi and everyone else are relevant, but not in a relative sense. Giambi is a particularly bad example, since he and his brother are both notorious on the party scene, and steroids likely have a worse effect on you when mixed with copious amounts of alcohol (I'm no doctor, but alcohol mixed with anything else tends to be bad. Why would steroids be any different?). In any event, it is going to be true of anything that it is going to have different effects on different people -- working out with weights might work for 75 out of 100 MLBers, but not the other 25. Separate from the opinion some have given that taking advantage might not be a bad thing (something I would quibble with, but not here, for sake of this argument), the question is whether steroids would improve performance more than they wouldn't. The best proof of this is probably the very fact that people take them. We don't know quite how many, and frankly, the BALCO investigation has targeted only the richest (thereby, access to BALCO) and most obvious users. For this argument to work, in short, we need to have a far larger sample than we have now.

Privacy. Please. Even if you look at the legal right to "privacy," it is limited to intimate associations with family and in the home, related to issues such as birth control, birth, sexual relations, and abortion. There is no "privacy" interest in being able to hit home runs (in front of 50,000 people no less, a strange privacy right to assert) and more particularly, the Supreme Court has said over and over again there is absolutely no privacy right in illegal acts. It should be conceded by all that MLB has the right to test, but even if you apply Federal Government standards and law to MLB, it is not at all clear that "privacy" would win the day, or even be a colorable claim.

"[B]aseball isn't supposed to conform to any moral code, but only the rules that the MLB sets out for itself."

Yes. Somebody actually said this. I hope he's not running for Congress anytime soon.

Somebody had an excellent idea about having an "approved list," where players would take a substance to MLB and they would approve it. This started the whole BALCO thing in the first place, with Conte trying to game the system by creating a steroid not listed in the statutes. It would take care of McGwire's Andro problem too. You could go overboard, having to approve twinkies and Pepsi and sunflower seeds (and chewing tobacco would be an interesting debate), but it's a good, outside-the-box idea.

I take issue with the idea that steroids weren't banned in MLB. I don't think that was the case. (Jerry, insight?) The issue was that there was no testing by which to establish that anyone had taken steroids, and therefore come under the ban. It seems that the FBI would be very interested in an organization that for 20 or more years failed to ban illegal substances, and in fact, seemed to help proliferate the trade and or use of them. The failure to get steroid testing done was less a function of MLB unwillingness than Player Association intransigence? No?

After some more thought on the subject, I stand by my thoughts of earlier on the records and accomplishments. The story is more important than the numbers, and the shame will (hopefully) be enough.

It will be interesting whether Bonds repeats Rose's mistakes. The two situations are probably distinguishable (at least at a glance, this is something I haven't thought about yet), but what will unite them is if Bonds continues on this "knowingly" track. While there are legal questions and the chance of an indictment or other action against him, he probably should say this publicly and on the stand because it is probably true in the "technical" sense, even if it wouldn't ultimately save him from conviction. But the key will be after BALCO is all over, the Government has done what it will do with Bonds, and the game then has to decide what to do with his legacy. Rose waited too long, and did it selfishly, killing his chances. Bonds will want to wait, so that some of the furor dies down, but not too long so that his apology seems forced or insincere. Specifically, does he ever admit in public, "Yes, I was so caught up in trying to improve my body that I took substances that I had reason to know might be a problem. I did not know that they actually were, but part of the reason why I didn't is because I did not want to face the consequences of the truth."

Finally, there is a reason that criminal courts require government to carry a "beyond a reasonable doubt" standard to get convictions. The deprivation of liberty, property, and possibly life, plus the government-instigated stigma of conviction itself make the high standard a reasonable one under the circumstances. Just from what we know, I think we're already there. Again, circumstantial evidence is real. It exists. It is admissible. We are allowed to draw conclusions from it. There does not have to be a "smoking gun" or an admission. But even if you want to quibble about that, what are the odds? 51%? 75%? 95%? For those of you who say 30%, see above under "knowingly."

MLB, like all self-governing entities, has to take care of itself. Congress can't do it. Fans really can't do it. We can't do it (particularly if we're going to continue to pretend, even today, that people aren't on steroids -- some people are going to be walking around meadows in ten years, scratching their chin, saying "Yes, but do we really know that Barry Bonds was on steroids? How do we know? How do we know anything? Is this all just an elaborate ruse? Am I dreaming? How many angels can dance on the head of a pin?" etc.). The Players Association is too greedy to do it. The Owners are too stupid, spineless, and greedy to do it. The Commissioner is too weak to do it. The media is too hypocritical to do it. Players, rise up!

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