Sherry F. Colb

Miguel Tejada's Guilty Plea:

What's Wrong With Prosecuting Dopers for Lying?
By SHERRY F. COLB
Wednesday, Feb. 18, 2009

Last week, former Baltimore Orioles shortstop Miguel Tejada pleaded guilty to federal charges of lying to congressional investigators about the use of performance-enhancing drugs in baseball. According to prosecutors, congressional staff members interviewed Tejada in 2005 in a hotel room and asked him whether there had been discussions among the players about steroids and whether he knew of other players using steroids, and Tejada responded (through a Spanish-language translator) that he had not heard such discussions and that that he did not know of any players using performance-enhancing drugs. After the interview, evidence surfaced that Tejada did in fact have discussions with a teammate about such drugs and purchased them as well. Tejada, who now plays for the Houston Astros, could face up to a year in jail for his crime.

It is illegal to use performance-enhancing drugs such as human growth hormone. Tejada has now admitted purchasing over six-thousand-dollars' worth of human growth hormone from a teammate but claims that he subsequently decided not to use the drugs but instead to throw them away. Assistant U.S. Attorney Daniel Butler seemed dubious of these claims but stated that the government did not have sufficient evidence to contradict them.

Congressman Henry Waxman, chairman of the House Committee on Oversight and Government Reform, which has investigated steroids in baseball, expressed approval for the decision to prosecute Miguel Tejada. Waxman apparently believes that such prosecutions teach our youth that the use of these drugs carries severe consequences.

However one feels about the use of performance-enhancing drugs in baseball, however, there is a troubling disconnect between the behavior sought to be discouraged in this case – the non-medical use of performance-enhancing drugs – and the behavior for which Miguel Tejada and others are being prosecuted – lying to Congressional staff. That disconnect exposes pretextual conduct by government officials and illustrates the pitfalls of such conduct.

Pretextual Behavior: Lying About Your Reasons

To engage in pretextual behavior is to embark on a course of conduct for one reason, while publicly (or privately) invoking a different reason. Say, for example, that I don't like tall people and that I try to avoid having anything to do with them, to the extent possible. I become a supervisor at a plant that has two tall workers reporting directly to me. I decide I want to fire these two people, because they are tall, but I know that firing people for their height will not represent a publicly acceptable action.

Thus, I make a point of closely examining the two workers' records, and I find that they have each arrived at work a few minutes late on occasion. I now fire them, citing their lack of punctuality. Perhaps I even give each of the two tall workers tickets to a very late movie or performance, knowing that they will be exhausted the next morning and arrive late to work. I can then fire them and say it is for their tardiness, though it is actually because of their height. I am using their late arrivals at work as a pretext for their termination. If you realize my true motives, you will likely conclude that I am not only unethical for terminating employees for a preposterous reason; I am also sneaky and dishonest for pretending that the firing has something to do with job performance. All in all, your opinion of me will likely deteriorate.

When the government engages in pretextual activity, it risks alienating the public in some of the same ways as I risk alienating you when I fire my tall employees. One common example of pretextual behavior by law enforcement officials involves traffic stops. Everyone who drives for any significant amount of time regularly violates the traffic laws, in part because it is impossible to be in strict compliance with the law at all times – if you drive at the speed limit when everyone else is driving ten miles per hour faster than the speed limit, then you create a hazard that may itself violate the traffic law.

Accordingly, police do not stop each person who they observe violating the traffic law. Instead, they select which people to stop, and that selection is sometimes based on personal suspicions that have nothing to do with the traffic law and that do not rest on any concrete or legitimate basis. For example, police sometimes decide to stop an African-American driver because of the driver's race. Police may hold the racist belief that African-Americans are likely (or more likely than others) to have illegal drugs in the trunks of their cars. They may also predict that if they pull over a car and ask for permission to search the trunk, the permission will be forthcoming. Having made the decision to stop the car, police officers follow it and wait for the driver to violate the traffic laws in one of the many ways that every driver violates the traffic laws.

The U.S. Supreme Court said in Whren v. United States that when police stop a person who has violated the traffic law, the police have acted in conformity with the Fourth Amendment prohibition against unreasonable searches and seizures, regardless of whether the real reason for the stop was the race of the driver, and regardless of whether a reasonable police officer would not have stopped a driver solely for the traffic violation in the absence of an ulterior motive. The Court thereby expressly approved of pretextual and racially- motivated police activity and labeled it "reasonable" as a matter of constitutional law. (To be sure, the Court allowed for the possibility of an Equal Protection challenge to such conduct, but cases like this rarely succeed because of the difficulty of proving racial motivation.)

For many readers of judicial opinions, the decision in Whren signaled a disappointing lapse in the Court's judgment. As in my earlier hypothetical example of firing people for their height while pretending it is for their tardiness, the police were not only misbehaving but also lying about their misbehavior; that is the hallmark of pretextual conduct.

The Tejada Case: Pretextual Conduct Coupled with Participation in the Offense

These examples provide some insight into the Tejada case. The criminal prosecution of athletes who use steroids may or may not be a worthy enterprise. Notably, however, Miguel Tejada was not prosecuted and has not pleaded guilty to using performance-enhancing drugs. In fact, the government acknowledges that it lacks sufficient evidence to disprove Tejada's claim that he spent $6300 on human growth hormone, only to change his mind and throw it all out. The U.S. government has instead prosecuted Miguel Tejada for lying about drug use -- more specifically, for saying falsely that he had neither discussed nor known about the use of performance-enhancing drugs in baseball.

Unlike the hypothetical case in which I looked for a reason to fire my tall employees, moreover, and the case in which racially-motivated police officers waited for a traffic violation, the government in this case played a role in producing the lies that it now prosecutes. It is therefore more like the case in which I give late-show tickets to my tall employees to induce their subsequent tardiness.

To appreciate why this is so, consider exactly what happened to Tejada: Congressional staff members asked a baseball player to discuss conversations about the use of performance-enhancing drugs in baseball, and he – predictably – feigned ignorance of such conversations and use. Having induced this false denial, the government now punishes him for his lie. But in fact, the prosecution has little to do with Tejada's lie – though it is legally grounded in that lie – and much to do with the prevalence of doping in baseball, for which the government apparently lacks sufficient evidence to charge Tejada as a participant. The prosecution for lying is thus itself a government lie – Tejada's lie is a pretext for punishing someone the government believes (but cannot prove) is involved in the use of performance-enhancing drugs.

Entrapment

When police induce a previously-innocent person to commit a criminal offense, the police have engaged in "entrapment." Entrapment is a defense to a criminal prosecution, even though a non-governmental actor offering an inducement of the same sort would not provide an excuse to the very same conduct by the defendant. If the government repeatedly and relentlessly tempts a person to sell drugs until the target finally does so, the target may prevail against a criminal prosecution with an entrapment defense. The basic rationale of this defense is not that the defendant did no wrong, but rather that the crime came from the government. We are thus more disturbed by the government's role in creating a crime and a criminal where there were none before, than we are by the criminal conduct itself, and thus we excuse the latter to deter and penalize the former.

When the government asks a baseball player questions about his own and his teammates' use of performance-enhancing drugs, it engages in a species of entrapment (though not one recognized as a common law defense to crime). The government knows that performance-enhancing drugs have become quite common in baseball, but its investigators and prosecutors have a difficult time gathering specific and accurate information on the subject, because players are predictably reluctant to speak openly. Understanding this state of affairs, the government conducts numerous interviews with players and asks questions, the answers to which are likely to be unhelpful and downright false. Armed with provable falsehoods, government officials no longer need to find out actual facts about drug use. All the government has to do is show that suspected baseball players lied.

Miguel Tejada is, of course, not a unique baseball player in finding himself the target of a criminal prosecution for lying about performance-enhancing drugs rather than for using, possessing or selling such drugs. Major League Baseball outfielder Barry Bonds will stand trial in March for lying to a grand jury about his use of steroids. Seven-time Cy Young Award-winning pitcher Roger Clemens is being investigated on allegations that he lied to Congress when he denied using performance-enhancing drugs. And Yankees third baseman Alex Rodriguez recently admitted using steroids, perhaps to avoid being prosecuted for falsely denying that he used steroids.

It may be that the most disturbing aspect of the prosecution of dopers for lying, rather than for doping, is the hypocrisy inherent in the government's effectively lying to the courts about what it is really prosecuting while relying on a law that criminalizes lying. If the government cannot honestly and forthrightly gather evidence to prosecute the use of performance-enhancing drugs in baseball, then it has no business expecting players to provide honest answers to questions about such use.


Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.