Perjury cases are rarely prosecuted by the Justice Department according to Jenkins:

It charged just 99 people with the crime in 2006, out of more than 88,000 federal defendants. Between 2001 and 2006, 566 perjury cases were filed — about 1 percent of all criminal charges. Cases brought before the federal criminal justice system are supposed to be top-notch in quality, and of overriding size and importance.

Unless, of course, the defendant is famous.

Prosecuting trivial lies by the likes of Roger Clemens, Barry Bonds, and Marion Jones in federal court is highly unusual. This is especially true when serious lies have been told to Congress with no perjury charges:

The fact is, any number of public figures, starting with Big Tobacco executives, have told much bigger lies to Congress than Clemens did, and none faced perjury charges. You want a brazen, damaging public lie? How about, “Tobacco isn’t addictive”?

Professional athletes are treated differently than non-famous steroid users too. Usually, the government targets steroid distributors and not steroid users. But things change when the steroid user is a professional athlete.

Normally the government doesn’t go after the drug users; it wants the sellers and distributors. But in this situation it’s the inverse. It flies in the face of any sensible anti-drug effort. Something is fundamentally wrong. Everything is backward. What are we doing?

There are several explanations why steroid-using pro athletes are treated differently than everyone else.

Jenkins writes that it is a lame attempt by the government to make an example out of sports heroes who set a bad example for the children. But how can letting the sellers and distributors of performance-enhancing drugs go free send the right message to the children? 

Law professor Frank Bowman justifies this approach from a prosecutorial perspective:

The hierarchy of the performance-enhancing drug market for professional athletes is exactly the reverse. The balance of power, money, and culpability lies with the players in their relationships with guys like Roger Clemens’ trainer Brian McNamee or former Mets clubhouse attendant Kirk Radomski… If relative culpability is to determine who is prosecuted and who is allowed to go free, it’s the players who should be indicted.

But I think Lou Schuler offers the best explanation as to why professional athletes are treated differently in steroid cases in his critique today of the cult of celebrity.

Fame, in Western civilization, has a narrative structure. You’re born to be a god or hero, you perform spectacular feats of strength or bravery or intellect, and then when you get to the top, you screw up. The gods get to remain gods despite their blunders — the monotony of their immortality has a lot to do with their need to beat the hornet’s nest from time to time — but the mortals or semi-mortals who achieve fame pay a terrible price. The demons that drive them to greatness inevitably get the better of them… 

The trinity of celebrityhood that I mentioned — athletes, entertainers, politicians — provide ready-made fodder for the narrative. The talent, magnetism, energy, and narcissism that drive people into the spotlight are the same qualities that make them likely to screw up at some point. It’s just a matter of time.

We love our sports heroes. But we love to see them fall from grace even more!

Sen. George Mitchell’s 409-page report on performance-enhancing drugs in baseball describes a thriving underground market for steroids and human growth hormone. What began with just a few players and trainers expanded into a network of dozens, if not hundreds, of professional athletes. That network grew year by year as the players referred their friends and teammates.

Below, we present the findings of the Mitchell report as a social network. Players are connected to the person who first introduced them to the Mitchell report’s star witness, Mets batboy turned personal trainer Kirk Radomski. In some cases, players met Radomski directly; in other cases they are several degrees apart. The statistical and visual analysis that went into making this chart was done using SocialAction, a software tool developed by Adam Perer and Ben Shneiderman at the University of Maryland’s Human-Computer Interaction Lab.

How many degrees of separation between every baseball player in the steroid social network?

The customary practice for federal prosecutors is to prosecute dealers rather than users. In a reversal of this practice, Radomski was given leniency in exchange for his testimony against his clients (individual steroid users who happened to be professional athletes).

Frank Bowman, a former prosecutor and current law professor at the University of Missouri-Columbia, justifies this approach:

Federal prosecutors customarily prosecute dealers rather than users primarily because dealers are considered more culpable. Dealers are the rich, bad-guy beneficiaries of others’ weaknesses, while users are destitute victims or inconsequential saps. Dealers affect many people. Users affect only themselves.

The hierarchy of the performance-enhancing drug market for professional athletes is exactly the reverse. The balance of power, money, and culpability lies with the players in their relationships with guys like Roger Clemens’ trainer Brian McNamee or former Mets clubhouse attendant Kirk Radomski. McNamee’s and Radomski’s continued employment in and around the major leagues depended on the favor of players, particularly stars. The nobody suppliers made a few thousand in pin money for supplying the juice. But the real financial gainers were the players: Drugs allowed them to cheat their way into the majors or to enhance and prolong careers worth millions of dollars. If relative culpability is to determine who is prosecuted and who is allowed to go free, it’s the players who should be indicted.

The other reason federal prosecutors ordinarily go after dealers, not users, is to have a greater effect on drug markets. But if one really wanted to stop the use of steroids in baseball, which is likely to be more effective—cooperation deals with a few locker room enablers, or the spectacle of big leaguers in prison stripes rather than pinstripes?

The end result is the same for the government snitch as the Drug Law Blog points out:

[T]he person who flips on their colleagues and friends is richly rewarded in our criminal justice system.

Now, Kirk Radomski is free to exploit his steroid infamy and sign the million dollar book that he bragged would overshadow Jose Canseco’s Juiced.

In other news, a teenager is facing 20 years in prison for selling steroids.

Frank Bowman, a former prosecutor and current law professor at the University of Missouri-Columbia, posted some interesting thoughts on the matter on Slate. The Justice Department’s behavior is problematic when it comes to “grand jury secrecy laws” and its policy on “uncharged third parties”:

A mere allegation of criminal wrongdoing coming from government sources can wreck a life or a career. If formal charges are filed, the defendant will at least have his day in court to admit or attempt to disprove the government’s case. But if the allegation comes in a report issued by the private sector, but engineered by the government, the reputational damage is done, and the defendant has no forum in which to contest it.

For precisely this reason, by law, federal grand jury proceedings are secret to protect the reputations of those who are investigated but never prosecuted. Historically, Department of Justice policy has been even more sensitive to these interests. In public filings and proceedings, the DoJ’s Principles of Federal Prosecution require prosecutors to “remain sensitive to the privacy and reputation interests of uncharged third-parties,” which “means that, in the absence of some significant justification, it is not appropriate to identify … or cause a defendant to identify, a third-party wrongdoer unless that party has been officially charged with the misconduct at issue.” (The italics are mine.)

Technically, the deals requiring McNamee and Radomski to cooperate with Mitchell probably don’t violate grand jury secrecy laws, because those laws bind prosecutors, agents, and grand jurors, but not witnesses like McNamee and Radomski. And technically, those deals might not have violated DoJ policy on uncharged third parties, inasmuch as Clemens and other players weren’t actually named in official filings or in a federal courtroom. But using plea bargaining leverage to require witnesses to divulge to Mitchell the names of people the Justice Department never intended to prosecute surely violated the purposes of both grand jury secrecy law and DoJ policy.

The requirement for Radomski and McNamee to cooperate with Mitchell was clearly outlined in their plea agreements: 

I will cooperate with non-governmental anti-doping agencies at the direction of the government. I understand that this cooperation may include interviews, statements, or other proceedings.

Frank Bowman goes on to suggest that this potential abuse of government powers is serious enough for Congress to call a formal investigation.

Now, if you think that Professor Bowman is somehow sympathetic to Major League Baseball players who have used anabolic steroids or growth hormone, think again. Bowman believes the “hierarchy of the performance-enhancing drug market for professional athletes” is such that federal prosecutors should primarily target the “athletes” and not the “dealers” which is contrary to the customary prosecutorial practice of pursuing dealers instead of users.

Even if you agree with government involvement in anti-doping efforts of private sporting leagues, there should always be limitations on government behavior to prevent abuses of power.

Source: Slate

The allegations and naming of specific baseball players was the sensationalistic information that the public eagerly consumed. Some news organizations dismissed all of this as “hearsay.” This is incorrect. Willamette law professor Jeffrey Standen offers an excellent clarification:

[A]ll this talk about “hearsay” (I’m watching ESPN) is incorrect. Most of the evidence in the report is not hearsay. When a player asks a trainer to order him some steroids, the player’s statement is not hearsay. (It is a party admission specifically exempted from the definition of hearsay.) When a player writes a check for steroid purchases, the cleared check is not hearsay (it’s a business record, assuming a foundation could be laid, which would be easy.) When a trainer states he supplied or injected a player with drugs, it’s not hearsay (the statement is that of a co-conspirator, and thus is exempted from the definition of hearsay). Little of this report is hearsay; for the most part, the report consists of valid evidence. The only question about the report is whether or not the (valid) evidence it gathers is sufficient to conclude the named player actually used illicit enhancements. It’s a question of the weight of the evidence, not its validity.

So, the Mitchell Report does offer legal evidence about steroid use. But does that “prove” guilt of any of the players? That all depends on the standard of proof. In criminal prosecutions, it is “beyond a reasonable doubt.” In civil cases, it is a “preponderance of the evidence.” But what standard is applied to drug use in athletes? If we use the World Anti-Doping Association (WADA) and U.S. Anti-Doping Agency (USADA) as a guide, the standard is apparently “comfortable satisfaction.” Was this simply invented to increase the apparent success rate, prove the effectiveness of the drug testing programs, and therefore gain more funding? This standard of proof seems like it is slightly higher than “suspicion.”

Senator Mitchell told AP that the standard of proof wasn’t really relevant since the investigation was a private inquiry commissioned by MLB.

It is not a judicial proceeding. It is not a trial… But it doesn’t make any difference what standard or what court you’re in: direct, personal, eyewitness testimony, it is the principal form of evidence in most proceedings.

One thing is for certain – the standard of proof required in the court of public opinion is significantly lower than “comfortable satisfaction.”