Imagine your worst nightmare. An ex-lover testifying in open court, with all the salacious details spread around the world, that you transformed yourself into a genetically engineered replicant who was violent, impotent, and testicularly challenged, while your mother and family are sitting right behind you. I think I would rather plead guilty than suffer this embarrassment, and that is the government’s strategy. The high-tech lynching of baseball’s greatest slugger.
My first experience with congressional hearings was the Senate Watergate Committee. Sam Ervin, Sam Dash, Howard Baker, John Dean testifying to the cancer on the presidency and Alexander Butterfield’s bombshell about the tapes. It was pure theater. I was a student activist and loved every minute of “the president’s men” being grilled on national TV by Sam Ervin with his folksy style and country homilies.
Then I loved the Robert Bork hearing on his Supreme Court appointment. It was a highly stimulating intellectual dissection of Bork’s ideas. Panel after panel of legal experts went over Bork’s extensive writings. At the outset I hated Bork because he was a right-wing radical and the guy without any backbone who finally fired Archibald Cox in the Saturday night massacre. But I admired Bork’s mind. He was a brilliant, cranky, prolific writer. The panels tore apart his academic writings and proved they were too radical for the court but still an impressive intellect.
So I anticipated another great hearing on Clarence Thomas. I was against the appointment because he was too far to the right and it smacked of affirmative action and pandering by Bush the First. The hearings started well but then sunk right into the slime. Anita Hill testified, not as to Thomas’ mental acuity, but rather his sexual appetite from Coke cans to long dong silver. But his rebuttal saved the appointment:
“This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”
Barry Bonds better be working on his rebuttal.
The lynching comes from former paramour Kimberly Bell testifying in graphic detail about sexual dysfunction (think ED and Bob Dole), specifically and graphically about impotence and shrunken testicles. It is abject humiliation giving tawdry a bad name. For her sweet revenge for being dumped. For the feds a juicy target, a career-maker, headlines, awards, and job offers. Fair enough if you play it fair. But not them. It is dirty laundry and tabloid heaven. All the so-called rules and simple human decency out the door.
The government is adopting the same tactics criminal lawyers use to use in rape case. Trash the victim. In response, by the late 1970s and early1980s, almost all legal jurisdictions adopted rape shield laws. They do not permit any evidence relating to past sexual behavior of the woman. Especially specific instances of prior or subsequent sexual conduct by a recognition that a person’s sexual history prejudices juries yet provides little evidentiary value. So where is equal justice? How can prosecutors use the same toxic tactics against Bonds?
The defense tried to discredit Bell. They trotted out the typical cross claiming she was a bitter, jilted ex-lover, gold digger, liar and mortgage fraudster. She gave interviews to Playboy, Geraldo and Howard Stern. Bonds bought her several cars, made the down payment for her house and still she complains. And of course she whined about all his other mistresses. The defense response: not bad for a guy with penile dysfunction.
Lowell Cohn, a sports columnist, however, thought Bell won the battle of cross-examination:
“Cristina Arguedas is the defense attorney who questioned Bell. She yelled and sneered and was sarcastic and threw papers on the table and threw her glasses on the table. She was like a bulldog tearing at Bell’s pant cuffs. She showed no subtlety, had only one gear — attack. The judge warned her to “ratchet down” her tone.
“She bullied Bell, who already seemed vulnerable. As a strategy, this was not smart — one woman going after another in front of a jury with eight women and most of the men older men. The people on the jury must have felt for Bell, Bell under siege. They certainly paid more attention to her than the steroid scientist, stared intently at her as she spoke, wrote notes on their pads. People like the jurors have daughters. Arguedas, in her zeal, lost sight of that. She would have done so much better with a calm tone and some humor and humanity.”
This is a good lesson for young lawyers. Sometimes the lawyer gets too pumped up for the cross. With a witness in a sex case use a rapier not a broadsword. You do not want the jury being sympathetic to the alleged victim. Kill them with kindness. Walk her through every deception, lie, and manipulation while acting as a gentlemen. It is not easy to keep self-control but whoever loses it first – loses.
Arguedas did get two good quotes from Bell: “It was not my intent to be vulgar,” and “I’m not a liar.” (Shades of Richard Nixon.)
What is the bottom line here? Victor Conte, the evil genius behind BALCO, who distributed all the steroids, was sentenced to four months in jail. Bonds, a mere user who lied about his own use of steroids, can’t possibly get more than that. All at a price tag of $10 to $50 million of our tax dollars. All to give the prosecutors an enhanced resume.