Sports and the Meddling Prosecutor

Reason has run an exceptional piece on law enforcement’s encroachment upon the sports world. To summarize,

Prosecutors are taking advantage of the drastic post-1970 expansion of the federal criminal code to conduct legal shaming exercises against notorious sporting figures, often using charges that are tangential at best to the behavior that sparked investigative interest in the first place. The results are a sobering reminder of just how little restraint remains on federal power when investigators set their sights on popular celebrity targets accused of unpopular rule breaking.

How’d all this happen?

Federal prosecutors can now pursue what we call “derivative crimes,” or official violations derived from other bad acts. The most notorious source of such charges is the Racketeering Influenced and Corrupt Organizations Act of 1970, or RICO. Prosecutors use RICO to bundle a series of state offenses into a federal “racketeering” charge, which in practice lowers the burden of proof on the government, since a prosecutor does not have to demonstrate beyond a reasonable doubt that the defendant actually committed each of the underlying state offenses.

And this is really vital information for anyone concerned about the Barry Bonds and Roger Clemens perjury cases:

These subpoenas placed Bonds and others in an untenable position not well understood by the public. Witnesses summoned by a federal grand jury, unlike those who testify in a criminal trial, do not have full Fifth Amendment rights to withhold potentially self-incriminating testimony. (Indeed, Bonds’ trainer, Greg Anderson, spent 14 months in jail for refusing to testify.) If Bonds or any of the other athletes had knowingly taken steroids, they had three choices: They could deny it, which would mean committing perjury; they could try to invoke their Fifth Amendment rights, which prosecutors could reject and would in any case be perceived by the public as tantamount to admitting guilt; or they could admit they used steroids, risking their careers either byinviting league sanction or provoking public outrage.

Partly as compensation for the lack of full Fifth Amendment protection, federal grand jury proceedings are supposed to be secret. But press leaks are common, especially in high-profile cases. Bonds’ entire testimony was published in the San Francisco Chronicle within hours. It is a felony to leak secret grand jury testimony, but since federal prosecutors tend not to indict themselves, it is not uncommon for prosecutors or others to leak testimony when it suits their purposes.

It’s an eye-opening piece. Read the whole thing, as they say.


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